Sgouros and Glezos

FAMILY COURT OF AUSTRALIA

SGOUROS & GLEZOS

[2019] FamCA 63

FAMILY LAW – PROPERTY – final property settlement – where the parties were married for 28 years and had seven children – where the husband ceased working in the parties’ business in 2009 – where the wife continues to operate the business – where the business has a nil value – finding that the contributions are equal – Section75(2) adjustment due to income-earning disparity.

Family Law Act 1975 (Cth) ss 75(2), 79
Evidence Act 1995 (Cth) s 140

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Pulukuri & Pulukuri [2013] FamCA 132
Re F: Litigants in Person Guidelines [2001] FamCA 348
Rosati & Rosati [1998] FamCA 38; (1998) FLC 92-804
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling [2013] FamCA 57; (2013) FLC 93-527

APPLICANT:

Mr Sgouros

RESPONDENT:

Ms Glezos

FILE NUMBER:

MLC

5878

2012

DATE DELIVERED:

6 February 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

4 August 2016, 12, 13, 18 & 21 September 2017, 23, 24, 25 and 26 October 2017

Final Written Submissions received 27 November 2017

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Salamanca

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

Orders

That within 60 days (“the Date”) the husband pay or cause to be paid to the wife the sum of $114,000 (“the Payment”).
That contemporaneously with the Payment:-
(a)       the husband do all acts and things as may be required to transfer to the wife at her expense all his right title and interest in the property situate at and known as B Street, C Town (“C Town”) and the wife indemnify the husband and keep him indemnified against all payments, rates, taxes, outgoings of or with respect to C Town;
(b)       the wife do all such acts and things as may be required to withdraw any caveat lodged by her or on her behalf against the title to the property situate at and known as D Street, Suburb E (“D Street”);
(c)       the husband and the wife do all acts and things to transfer to the wife moneys held on trust for them in the CBA Term Deposit.
That the husband retain his right title and interest in:-
(a)       D Street;
(b)       The boat and trailer;
(c)       The Motor vehicle 1 registered in his name;
(d)       The chattels in his possession.
That the wife retain her right, title and interest in:-
(a)              The Entities, being:-
(i)            F Pty Ltd as trustee for the Glezos Family Trust;
(ii)           G Pty Ltd as trustee for the G Family Trust;
(iii)H Pty Ltd as trustee for the Sgouros Investment Trust (“H”)(“the Entities”);
(b)              The property situate at and known as J Street, Suburb K (“J Street”) registered in the name of H and the wife indemnify the husband in respect of all payments and liabilities pursuant to any mortgage secured against the title to the said property and all rates, taxes and outgoings of J Street of whatsoever nature or kind;
(c)              The C Town property;
(d)              Moneys held in the CBA Term Deposit;
(e)              The chattels in her possession.
That the wife indemnify the husband and keep him indemnified in respect of any and all liabilities of the Entities, including but not limited to any taxation or mortgage liability.
That in the event that the Payment is not paid by the Date the husband do all acts and things as may be required to sell D Street upon such terms and conditions as agreed between the parties and the proceeds of sale be applied as follows:-
(a)First to pay all costs and commissions of and incidental to the Sale;
(b) Second to pay to the wife so much of the Payment as is then outstanding together with interest thereon calculated at the rate prescribed pursuant to the Family Law Rules 2004 (Cth).
(c) The balance then remaining to the husband.
That in default of agreement as to the appointment of the selling agent for D Street the agent shall be nominated by the President of the Real Estate Institute of Victoria or his nominee.
That there be liberty to apply with respect to the terms and conditions of the Sale.
That unless otherwise specified in these orders and save for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a)          Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at the date of these orders;
(b)         Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)         Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
(d)         All insurance policies are to become the sole property of the owner named thereon;
(e)         Each party be liable for any debt in their name including credit card debts and indemnify the other against any personal guarantees given by them in their capacity as company director and any liability encumbering any item of property to which the party is entitled pursuant to these orders;
(f)          Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter involved the reasonable and proper engagement of counsel.
That all extant applications be otherwise dismissed.

IT IS DIRECTED

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sgouros & Glezos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5878 of 2012

Mr Sgouros

Applicant

And

Ms Glezos

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant husband and the respondent wife shared a relationship that spanned approximately 28 years and produced seven children.
The husband was born in Country L and migrated to Australia in 1984. The wife was born in Country M and migrated to Australia in or about 1970. At the commencement of their cohabitation both parties were young, aged 26 and 17 respectively, and had very little by way of assets.
During the course of their relationship the parties established a business. The parties dispute their roles and contribution to that business, as well as its value.
The parties also acquired real property during their relationship. The property that remains includes the former matrimonial home at D Street, Suburb E (“Suburb E property”), a commercial property at J Street, Suburb K (“Suburb K property”) from which the business is conducted, and a rural property at B Street, C Town (“C Town property”). Whilst the parties agree as to the value of these properties, they are in dispute as to who should retain the C Town property. The parties also disagree as to whether the husband should retain the Suburb E property or if it should be sold.
In addition, the parties purchased a number of investment properties during the relationship that were sold following their separation.
Each party is critical of the other’s conduct during the marriage and since their separation. The husband alleges that the wife has failed to make full and frank disclosure with respect to the sale of the investment properties and her interest in a property purchased by her new partner in Suburb N. He also alleges that she has concealed substantial sums of money.
The wife alleges that the husband provided little assistance in the conduct of the business, particularly during the latter years of the marriage, and that primary responsibility for its operation as well as the care of the children and the home fell to her. As a consequence, the wife submits that there should be an adjustment of property that reflects what she says are her greater contributions.
Both parties seek orders for the adjustment of property interests pursuant to Part VIII of the Family Law Act1975 (Cth) (“the Act”). These are my Reasons for Judgment with respect to the parties’ competing applications.

the parties

At the time of the hearing the husband was aged 60 and unemployed. The wife was aged 51 and employed.
The husband was born in Country L and was assisted by an interpreter during the trial.
The parties’ commenced cohabitation in 1983 and married in 1984. The husband asserts the parties separated on 10 July 2011 whilst the wife asserts separation occurred on 29 June 2011. For the purposes of determining the parties’ competing property applications, little turns on that issue. On either scenario the parties’ shared a long relationship, spanning a period of approximately 28 years.
The parties divorced on 15 September 2012.
The wife has re-married and lives with her partner, Mr O. The husband has not re-partnered.
There are seven children of the marriage, all over the age of 18 years.

Material relied upon and orders sought

The husband relied on the following documents:-
·    Case Outline filed 3 August 2016:
·    Amended Initiating Application filed 3 June 2016;
·    Affidavit of the husband filed 3 June 2016;
·    Financial Statement filed 3 June 2016;
·    Affidavit of Dr P filed 3 June 2016;
·    Affidavit of the husband filed 18 September 2017;
·    Submissions dated 20 November 2017.
At the time of filing of his Amended Initiating Application the husband was represented by lawyers. In his oral submissions on the last day of trial, 26 October 2017, the husband confirmed that he sought the orders contained in his Amended Application. In addition to those orders, the husband submitted that he also sought a payment from the wife in the sum of $946,000.
Notwithstanding those oral submissions made 26 October 2017, in the husband’s written submissions dated 20 November 2017 he sought the following relief:
I want for my children and 27 years of marriage:
I want My home [D Street, Suburb E]
I want The caveat Removed from my home in [D Street]
I want the Farm [B Street C Town]
I want [the wife] to remove her name from the Title of Property [B Street, C Town] – and to be changed or transferred into my Sons name [Mr Q].
I want $362.000.00 that was taken (or) Stolen from my home loan acc.
$436.000.00 that was put into [Sgouras] Family (2) for me [the husband]
I also want $1,000.000.00 from [the wife] so I can have closure on all our Businesses we shared and
Assets we had at the time of Separation.
The wife relied on the following documents:
·    Amended Case Outline dated 3 August 2016;
·    Affidavit of wife filed 11 March 2016;
·    Affidavit of the wife filed 1 July 2016;
·    Financial Statement filed 11 March 2016;
·    Affidavit of the wife filed 5 May 2017;
·    Transcript of proceedings of 21 March 2016 and 4 August 2016;
·    Submissions in reply filed 27 November 2017.
The wife sought orders as set out in her Amended Outline of Case filed 3 August 2016, save that during the opening of her case, the adjustment sought by her was increased from $11,000 to $22,000, to take into account costs orders made on 1 June 2017. The orders sought by the wife are as follows:
1.The Respondent retain all her right title and interest in the real property situated at [J Street, Suburb K] (“[Suburb K] property”) registered in the name of [H Pty. Ltd.] ATF [Sgouros] Investment Trust and indemnify the Applicant against all payments and liabilities pursuant to the mortgage to [R Bank] and all rates, taxes, outgoings of or with respect to the [Suburb K] property of whatsoever nature and kind.
2.The Applicant transfer all of his right title and interest in the property situated at [B Street, C Town] (“[C Town] property”) to the Respondent and the Respondent indemnify the Applicant against all payments, rates, taxes, outgoing of or with respect to the [C Town] property.
3.Each party retain any motor vehicles that are currently in their possession.
4.The Respondent retain the CBA Term Deposit held in trust on behalf of the parties.
5. The Applicant retain his boat and trailer.
6.That the Respondent retain all her right title and interest in [F Pty. Ltd.] ATF [Glezos] Family Trust, [G Pty. Ltd.] ATF [G] Family Trust, [H Pty. Ltd.] ATF [Sgouros] Investment Trust and be responsible for and indemnify the Applicant with respect to any outstanding liabilities relating to such entities.
7.Each party retain any items of furniture and chattels as well as personal belongings that may be in their respective possession.
8.That the Applicant forthwith do all such acts and things and sign all relevant documents to sell the property situate at [D Street, Suburb E] (“the [Suburb E] property”) upon such terms and conditions as may be mutually agreed upon between the parties save that the reserve sale price be set at $890,000 and with a settlement period of 60 days and the net proceeds of sale be divided as between the Applicant and Respondent in a manner which effects a division of the parties total net assets in the proportion of 55% to the Respondent and 45% to the Applicant less the sum of $22,000 used by the Applicant to satisfy the Order.
9.In default of agreement as to the identity of the selling agent or other terms and conditions of sale the parties hereby appoint the then President of the REIV to determine same.
10. In the event that the Applicant fails to execute any document, deed or instrument required to effect the sale of the Suburb E property, pursuant to section 106A of Family Law Act, a Registrar of the Family Court of Australia at Melbourne be appointed to execute any such document, deed or instrument on his behalf.
11.Such further and other Orders as this Honourable Court deems appropriate.

The Proceedings

The husband commenced proceedings in this Court on 7 March 2014.
Those proceedings have had a tortuous procedural history, arising as a result of the parties, and in particular the husband’s, non-compliance with trial directions, as well as changes of legal representatives by both parties during the course of the proceedings. Those issues were compounded when the husband ceased to retain lawyers to represent him during the trial. Further, the husband alleged ill health during the course of the trial which delayed its completion.
On 21 August 2015 I made orders by consent for the parties’ to obtain single expert valuations with respect to their interests, including the Suburb E property, the Suburb K property and the C Town property.
On 14 October 2015 I made orders listing the matter for final hearing to commence on 17 February 2016 as a two day matter, as well as trial directions for the filing of trial affidavits and a consent order in relation to the appointment of a single expert valuer, S Valuers, to prepare an updated business valuation in relation to the wife’s interest in F Pty Ltd ATF Glezos Family Trust and all related business entities.
Neither the husband nor the wife filed material in compliance with those orders. As a result, at the mention hearing on 21 January 2016 I vacated the February 2016 trial date, extended the times for the parties’ compliance with previous trial directions and otherwise listed the matter for further mention before me on 21 March 2016.
On 16 March 2016 the husband’s solicitors filed a Notice of Ceasing to Act and the husband became self-represented. The husband again did not file any material in compliance with my trial directions.
On 21 March 2016 the wife filed an Application in a Case seeking that she be granted leave to proceed with the matter on an undefended basis pursuant to paragraph 11(b) of the orders made on 14 October 2015. That order provided that:
11.Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:
(a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and
(b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
At the mention hearing on 21 March 2016 the husband appeared in person whilst the wife was represented by counsel. That day I made orders extending the time for the husband’s compliance with orders for the filing of trial material. I listed the wife’s Application in a Case to 6 May 2016. The notation to those orders provided:
That in the event of the husband’s failure to comply with these orders the wife will seek to proceed with her application for the proceedings to be determined on an undefended basis.
On 8 April 2016 the husband’s newly appointed lawyers filed a Notice of Address for Service.
On 6 May 2016 both parties were represented by counsel. That day I made orders fixing the matter for trial to commence on 4 August 2016 as a two-day matter. Further, I made the following orders by consent:
1.That the husband pay the wife’s costs of and incidental to her application filed 21 March 2016 in the sum of $11,000.
2.That the said costs be paid out of the funds held on behalf of the parties by the wife’s legal practitioner and that sum be credited to the husband as part property settlement and deducted from his ultimate property settlement entitlement.
The first day of the trial commenced on 4 August 2016. The husband was then represented by solicitor and counsel. Notwithstanding the time estimates given by counsel when the matter was fixed for hearing, that day I was informed by counsel appearing that the matter was likely to take a further four days. Counsel for the husband opened his client’s case, the husband was called and cross-examination of the husband commenced. The husband was assisted by a Country L interpreter.
Due to the unavailability of the interpreter for the husband on the second day of the trial, the matter was adjourned part-heard to 23 January 2017, being the earliest date upon which a four day matter could be accommodated.
On 22 December 2016, at the request of the parties, the matter was listed for a telephone mention. The parties sought a further adjournment of the part-heard hearing due to the single expert witness, Mr T being unavailable on the adjourned date. The parties’ lawyers conceded that Mr T had not been given notice of the adjourned hearing date until 16 December 2016. In the circumstances, orders were made vacating the final hearing and listing the matter for mention before me on 25 January 2017.
On 25 January 2017 I listed all extant applications before me as a part-heard matter on 29 May 2017, again noted as a four day matter.
On 16 May 2017 the husband’s lawyers filed a Notice of Ceasing to Act.
Given the withdrawal of the husband’s lawyers the matter was listed for mention on 24 May 2017. That day the husband appeared in person and the wife was represented by counsel. The husband sought a further adjournment of the hearing to enable him to engage new lawyers. I made the following orders:
1.That the final hearing listed to resume on 29 May 2017 at 10.00am be vacated.
2.That all extant applications be adjourned for further mention before Johns J at 9.30am on 1 June 2017.
3.That for the purposes of the mention hearing the husband be in a position to inform the Court as to:-
(a)Whether he intends to engage lawyers to represent him at the final hearing; and
(b) If so, the identity of those lawyers.
4.That the question of the wife’s costs of the adjournment of the part-heard hearing be reserved to the mention hearing.
AND THE COURT NOTES:-
A.That the husband has informed the Court this day that he has an appointment with the Legal Ombudsman on 29 May 2017

On 1 June 2017 the husband again appeared in person. The wife was represented by her counsel. I made orders that all extant applications be listed for hearing before me as a part-heard matter for four days commencing on 11 September 2017. I also made the following orders by consent:
1.That the Husband pay the Wife’s costs of and incidental to the Husband’s Application for adjournment to the part heard hearing on 29 May 2017.
2.Such costs fixed in the sum of $10,945 and to be paid out of the funds held in trust on behalf of the Husband and Wife by [U Solicitors].
3.That the said sum of $10,945 be deducted from the Husband’s ultimate property settlement entitlement in these proceedings.
4. Reserve the question of the parties costs of and incidental to the Mention of this date.
5. Certify for Counsel for the Wife
AND THE COURT NOTES
1. That Justice Johns informed the Husband of the following this day:
i.That the Husband is unlikely to be granted any further adjournments of this matter.
ii. That the matter will proceed on the 11^th of September 2017 irrespective of whether he has engaged legal representation.
iii. In the event that the Husband does not engage legal representation he shall be expected to represent himself.
The proceeding resumed part-heard on 12 September 2017. Prior to the resumption of the hearing, as the husband elected to represent himself, in accordance with the guidelines contained in Re F: Litigants in Person Guidelines [2001] FamCA 348 I explained to the parties the court process. I informed the parties that in accordance with the provisions of the Act I would determine the matter in accordance with the provisions of ss 79 and 75(2) of the Act. I ensured that my Legal Associate provided copies of those provisions to the parties prior to the resumption of the hearing. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
The continuation of the trial was made all the more challenging due to the husband’s difficulties with the English language. Although he had an interpreter available to him, at times the husband chose not to use the interpreter and answered questions in English or responded before the questions were interpreted to him. As a result, the conduct of the proceedings was made more difficult; considerable time was spent ensuring that the husband understood questions asked or that the meaning of what he had said was clear.
As a result of the husband’s unfamiliarity with Court process coupled with his language difficulties, it was necessary at times to allow the husband some latitude in the presentation of his case. It was often difficult to keep the husband focussed on the trial process. Notwithstanding my directions as to how the matter was to proceed, during his own evidence and his cross-examination of the wife and the single expert, the husband regularly sought to make speeches regarding the wife’s case and her conduct, the conduct of his former lawyers (about which he complained) and what he considered to be the unfairness of his situation.
As was observed by Cronin J in Pulukuri & Pulukuri [2013] FamCA 132 at paragraph 14:
Every litigant has the right to represent themselves. Where one party is represented and the other is not, the advice and assistance the unrepresented person receives should be limited to ensure that any disadvantage in not having a lawyer is overcome particularly in an adversarial environment. However, the court in that situation cannot extend its duty to create a positive advantage to the unrepresented over the represented.
That the husband chose to conduct his case without representation did not afford him any advantage in the proceedings over the wife. During the trial the husband complained at times that he wished to call witnesses or produce further evidence as to the wife’s alleged misconduct in her operation of the business. I reminded the husband on a number of occasions that such evidence was to have been adduced on affidavit prior to the commencement of the hearing. Given the procedural history of the matter and the numerous adjournments afforded to the parties in order to ready the matter for trial, I informed the husband that the matter could not be further adjourned.
On 13 September 2017, which was the third day of the hearing, the husband did not attend Court. The husband was telephoned to ascertain his whereabouts. He alleged that he was unable to attend Court due to ill-health and that he had attended upon a medical practitioner. In the circumstances I made the following orders:
1.That by 11.00am on Friday 15 September 2017, the husband make, file and serve an affidavit which provides the following particulars and annexes any documentation in his power, possession or control relating to the following:
(a)His attendance at and consultation with medical or health providers from 5.00pm 12 September 2017 and thereafter to 11.00am Friday 15 September 2017;
(b)The name and professional address of any medical or health provider that he attended upon and consulted with from 5.00pm on 12 September 2017 to 11.00am on Friday 15 September 2017;
(c)Particulars of any medication prescribed for the husband from 5.00pm 12 September 2017 to 11.00am on Friday 15 September 2017;
(d)Particulars of each and every attempt to attend upon and consult with any medical or health provider from 5.00pm 12 September 2017 to 11.00am 15 September 2017;
(e)Any health plan or reports or prescription relating to the husband’s attendance or consultation with any medical or health provider from 5.00pm 12 September 2017 to 11.00am 15 September 2017.
2.That the question of the wife’s costs of and incidental to the husband’s non-attendance and the adjournment of the hearing this day be reserved to the further hearing of this matter.
3.That as and from 11.00am Friday 15 September 2017 until the adjourned date of this matter on 18 September 2017, the husband provide particulars of any matters referred to in paragraph 1 hereof.
4.That all extant applications be adjourned for hearing before Johns J as a part-heard matter at 10.00am on 18 September 2017.
The matter resumed on 18 September 2017 and the husband again did not attend Court. He was telephoned from Court so as to ascertain his whereabouts. The husband sought a further adjournment of the trial due to his alleged ill-health. The husband relied on his affidavit filed that day in support of his application for adjournment. The husband deposed in that affidavit as follows:
I am unable to attend court because I cannot cope with what is going on in my life!
I believe that I am entitled to a fair return from all of the assets that we have created and now believe that the assets have been hidden so I cannot prove they exist. I enclose a report from my psychiatrist for the Family Court of Victoria [sic]…
Annexed to that affidavit was a letter addressed to the Court from Dr P, Consultant Psychiatrist, dated 14 September 2017. That letter states that the husband attended Dr P on 14 September 2017. Dr P reported that he found the husband in a “severely anxious state, depressed in mood and with impaired psychomotor energy”.
Dr P assessed the husband as being in:-
…a severely depressed and stressed state, and in [Dr P’s] opinion not fit to attend his court hearing, and is not cognitively capable of grasping and identifying how to respond to issues raised under circumstances where he has no option but to represent himself.
At the conclusion of his letter Dr P reported the following:
In my estimation, this state will extend for approximately 10 days, but will vary in response to the degree in which [the husband] find ways to address his legal situation.
I would recommend that [the husband’s] matters be deferred for approximately the above duration, or somewhat longer, to enable him to recover his mental health and continue to deal with the hearing. If he can find representation (which I understand had been offered, but was not available for this week), this will make a very substantial difference to [the husband’s] capacity to attend…
The affidavit also included an annexure of a Better Access Mental Health Care Plan dated 13 September 2017.
The wife sought to cross-examine Dr P regarding his assessment of the husband. Notwithstanding attempts by the wife’s solicitor to communicate with Dr P by telephone and email he was not able to be contacted that day. In the circumstances, I made the following orders:
1.That the wife be granted leave to file and serve a subpoena directed to Dr P of … to produce all his clinical notes with respect to [MR SGOUROS] and that such subpoenae be returnable at 10.00am on 21 September 2017 for the production of documents and that [Dr P] be available to provide oral evidence at 2.15pm on 21 September 2017.
2. That the question of the wife’s costs be reserved.
3.That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.
4.That all extant applications be adjourned for further hearing before Johns J at 10.00am on 21 September 2017.
AND THE COURT NOTES:
A.That the issue of whether a Case Guardian should be appointed to represent [Mr Sgouros] has been raised with the parties this day.
B.It is anticipated that further consideration will be given to that issue upon evidence being given by [Dr P] on 21 September 2017.
On 21 September 2017 the husband again did not attend Court but appeared by telephone. Counsel for the wife indicated that his client was willing to accept the report of Dr P dated 14 September 2017 at “face value” and did not seek to cross-examine Dr P that day. Given Dr P’s assessment that the husband should be afforded a period of 10 days to “recover his mental health” I made orders as follows:
1.That all extant applications be adjourned for further hearing before Johns J as a part-heard matter to resume at 10.00am on 23 October 2017 as a three-day matter.
2.That in the event of the husband’s non-appearance at the adjourned hearing on 23 October 2017, the wife have liberty to apply to proceed on an undefended basis.
3.That the question of the wife’s costs of this day be reserved to the final hearing.
4. That the requirement for [Dr P] to attend Court pursuant to the Subpoena issued on 15 September 2017 be extended to 10.00am on 23 October 2017.
Upon the resumption of the hearing a letter from Dr P to the wife’s lawyers dated 14 October 2017 was tendered by consent of both parties (Exhibit W9). In that letter Dr P reports the following:
…
I find that [the husband’s] mental state is currently normal, and have found no clinical evidence that there is any current psychiatric condition that would prevent him from being able competently to [sic] engage in negotiation with your firm with regard to his matters.
…
The trial resumed on 23 October 2017 and proceeded for a further four days. The husband appeared in person for the balance of the proceedings. The parties made oral submissions on the final day of trial. However, given the husband’s language difficulties as well as time constraints, the husband was also afforded the opportunity to file written submissions. I made orders on 26 October 2017 that the husband file his written submissions by 19 November 2017 and that the wife file any submissions in reply by 26 November 2017.
The husband’s submissions dated 20 November 2017, were one day out of time. Annexed to those submissions were documents including bank records, Centrelink records and an affidavit of Mr V. I have not read the annexures to the husband’s submissions as those documents do not form part of the evidence adduced during the hearing.
The husband’s submissions are largely unhelpful insofar as they refer to matters not in evidence and contain many allegations and assertions that were not raised during the course of the hearing. For example, the husband’s submissions contain allegations that the parties held an interest in a company based in Sydney at the time of their separation. That allegation was not raised during the hearing. The husband also submits that the wife has advanced funds to the Sgouros (No.2) Family Trust and that those funds have “just Dissappeared”. Again, those allegations were not raised during the course of the trial.
The wife’s submissions in reply were also filed one day late on 27 November 2017. Neither the husband nor the wife took issue with the late filing of the other’s submissions.

The evidence

In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)      The nature of the cause of action or defence;
(b)      The nature of the subject matter of the proceedings; and
(c)      The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the witnesses when giving their evidence in Court.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
The husband and the wife each carry the burden of proving different aspects of the case. Both the husband and the wife gave evidence and were cross-examined.

The husband’s evidence

As the husband was unrepresented for most of the proceedings, I had the opportunity to observe him both giving evidence and conducting his case. It became apparent during the course of his evidence that the husband had fixed views both as to his entitlements to a property settlement and as to the wife’s conduct during the course of the relationship and since separation. At every opportunity he sought to blame the wife, her new partner or his former lawyers for the difficulties with his case.
For example, the husband gave evidence to the effect that the wife and her father had concealed assets. The husband asserted that the wife’s father had transferred the sum of $50 million to the wife’s new partner, Mr O. He made bold assertions as to corruption by the wife’s father and by implication, the wife. He submitted that the Federal Police should be involved in the proceedings and that the matter should also be referred to the Australian Taxation Office. The husband also asserted that the wife was “hiding everything”. It was the husband’s allegation that the wife had fallen prey to her new partner whose family were “hypnotists” and manipulators. He also alleged that the family of the wife’s new partner used drugs.
The husband produced no evidence to support his scandalous allegations.
It appeared that the husband’s evidence (and the manner in which he presented his case) was heavily influenced by his refusal to accept that his marriage to the wife had failed. During his evidence, the husband conceded that he was angry that the wife had left the marriage; it was his view that she did not have any reason to do so. He stated that the breakdown of the relationship occurred due to the influence of the wife’s new partner. During his oral evidence the husband conceded that as recently as a week prior to the resumption of the trial on 12 September 2017 he forwarded a text message to the wife requesting that she return to him. That message was sent notwithstanding the fact that at the time, the parties were divorced and the wife was married to Mr O.
The husband’s recollection of events was poor. During the course of his evidence the husband conceded that he had difficulties with his memory. For example, the husband was cross-examined as to the circumstances of the parties’ acquisition of the C Town property in 1999 and the source of funds for that purchase. In his affidavit filed 18 June 2014 (Exhibit W-6) the husband deposed as to the purchase and sale by the wife’s father of the properties at W Street, Suburb X (“W Street properties”). The husband deposed in that affidavit that the proceeds of sale of the W Street properties was applied to the purchase of C Town. At paragraph 19 of that affidavit he deposed that the W Street properties were purchased in approximately 1988. At paragraph 22 of the same affidavit he deposed that those properties were sold in the same year for $750,000. The C Town property was purchased by the parties in 1999. The husband conceded during cross-examination that the evidence in his affidavit was incorrect and that he had no recollection as to when the W Street properties were sold.
It was put to the husband that the C Town property was purchased using funds advanced by the wife’s father from the sale of the W Street properties as well as funds from his business, Y Pty Ltd (“YPL”). Notwithstanding his confusion as to when the wife’s father sold the W Street properties, during his oral evidence the husband was steadfast that the source of funds for the purchase of the C Town property was the proceeds of sale of the W Street properties.
He was then asked questions with respect to paragraph 23 of his trial affidavit filed 3 June 2016. The husband there deposed that the purchase of the C Town property was funded by YPL. It was put to the husband during cross-examination that he had no idea as to the source of funds for the purchase of the C Town property. Notwithstanding the evidence contained in his trial affidavit, the husband responded to that proposition by stating that the source of funds for the purchase of C Town was the proceeds of sale of the W Street properties owned by the wife’s father. When questioned as to whether his affidavit was false, the husband responded “Maybe”.
Later in his oral evidence the husband conceded that the wife’s father had contributed $30,000 towards the purchase of the parties’ first property in Z Street, Suburb AA (“Suburb AA property”). The husband also conceded that he did not know whether there was a loan secured by way of mortgage over the title to the C Town property at the time of its purchase. Further, the husband confirmed that what information he had regarding the source of funds to purchase the C Town property came from the former partner of the wife’s father, Ms BB.
The husband was reluctant to make any concessions in relation to the circumstances of the acquisition of the C Town property. Although a poor historian, the husband was unwilling to make any concessions as to events unless presented with documents or other evidence that conclusively proved the wife’s version of events. That approach was unhelpful and did the husband no credit.
The husband was also cross-examined as to the construction of the dwelling on the C Town property. It was put to him during cross-examination that the wife’s father had made significant improvements to the C Town property. The husband conceded that upon the purchase of the C Town property the wife’s father began constructing a dwelling at the site. When it was put to the husband that the wife’s father had purchased shipping containers to use as storage and accommodation at the C Town property during the construction, the husband took issue with that proposition and said that it was Ms BB and not the wife’s father who had purchased the containers. The husband confirmed that the works undertaken by the wife’s father included pouring the concrete slab, erecting steel and timber frames, plastering and construction of the roof. The husband confirmed that he attended to the welding at the site.

The husband also confirmed during his oral evidence that the wife’s father planted fruit and nut trees at the C Town property. The husband eventually conceded that the wife’s father had contributed much labour to the development of the C Town property and agreed that the wife’s proposal that she retain the property for the parties’ children was a good idea. It was only during cross-examination that the husband made those concessions.
My impression of the husband was that any concession made by him was done so reluctantly and only when presented with evidence as to the matter about which concession was sought.
The husband’s evidence with respect to his allegations as to the wife’s conduct regarding the sale of the property at CC Street, Suburb DD (“CC Street property”) was equally unimpressive. The husband’s position was that he had no prior knowledge and had not consented to the sale of that property or to the disbursement of the sale proceeds. It was put to him that there had been negotiation between the parties’ lawyers and correspondence regarding the sale of the CC Street property prior to its sale. The husband denied that proposition.
As a result of the husband’s evidence, it was necessary for the wife’s counsel to put to the husband a chain of correspondence passing between the husband’s former lawyer, Mr EE, and the wife’s former lawyer, Ms U, from 18 October 2012 and 17 January 2013, regarding the sale of the CC Street property (Exhibit W-4). That chain of communication commenced with a letter from the wife’s former lawyer dated 18 October 2012 in which she wrote:-
…
We advise that the parties agreed amongst themselves to sell the property situated at…[CC Street, Suburb DD]. We are instructed the tenants in the [CC Street] property originally offered $800,000 but have since agreed to purchase the property for a price of $850,000.00. There was no agent involved. The sale proceeds are to be applied primarily towards the parties’ liabilities.
…
A further letter was forwarded by the wife’s former lawyers dated 31 October 2012 in which she wrote:-
…
We confirm the Contract of Sale has been executed for the property at…[CC Street, Suburb DD]. The property sold to the occupying tenants, Artery Co-operative Ltd for the purchase price of $850,000.00. The purchaser’s deposit of $85,000.00 is being held in our trust account as there is no selling agent.
We note the Contract of Sale is conditional on finance approval on or before 16 November 2012. The settlement date is 30 November 2012, subject to lender availability.
…
In the face of that correspondence, during cross-examination the husband persisted in his denial as to knowledge of the transaction or indeed any participation in decisions with respect to the transaction. The husband asserted that the documents to which he was referred were never given to him by his lawyer. The husband’s view was that the wife was involved in a conspiracy to take money from him. According to the husband, this transaction was part of that conspiracy.
The husband’s evidence was that he had not instructed his solicitor to provide a withdrawal of caveat in respect of the CC Street property and further, he alleged that the wife had signed a withdrawal of caveat on his behalf. The husband confirmed that he had had three legal firms represent him during the course of the proceedings who had prepared affidavits on his behalf. Further, the husband agreed that none of the affidavits sworn by him and filed in the proceedings referred to his allegation that the withdrawal of caveat was executed by the wife or any other person without his authorisation. The wife’s counsel put to the husband that he was prepared to make any claim in order to suit his purposes. The husband responded to that proposition with a comment that “outrageous” things had occurred in the conduct of the matter.
During his evidence the husband asserted that his former lawyers were incompetent and that it was as a result of their inaction that he was unable to prove his case, both in respect of the wife’s sale of CC Street as well as in relation to his contention that the wife has hidden assets.
I do not accept the husband’s evidence as to the alleged conduct of his former lawyers. Those lawyers are officers of the Court and have duties to the Court as well as their client. The correspondence passing between the parties’ lawyers (Exhibit W-4) is of a type usually exchanged between solicitors in relation to a sale of property. The letter from the husband’s lawyer dated 14 November 2012 refers to that lawyer’s intention to confer with his client regarding the matter. The letter from the wife’s lawyer dated 12 December 2012 refers to proposals put on behalf of the husband in a letter dated the same day. Further the letter from the husband’s lawyer dated 12 December 2012 refers to the conditions upon which the husband proposed to provide a withdrawal of caveat to enable settlement of the CC Street property to proceed. Having regard to that correspondence I do not accept the husband’s evidence that he was not informed by his lawyer of the arrangements for the sale of the CC Street property.
The husband’s evidence with respect to the sale of the CC Street property was unconvincing and inconsistent with the documents and communications exchanged by the parties’ lawyers at the time of that transaction. The communication passing between the solicitors for the parties (Exhibit W-4) is consistent with the wife’s evidence in relation to that transaction. Accordingly I accept the wife’s evidence regarding the sale of CC Street.
As a result of the manner in which the husband gave his evidence, I am satisfied that where there is conflict between his evidence and that of the wife’s, his evidence should be treated with caution.

The wife’s evidence

The wife presented as a generally more balanced and forthright witness. Faced with cross-examination directly from the husband, the wife was a calm and responsive witness. Indeed, at times she endeavoured to assist the husband when he had difficulty formulating questions, attempting to clarify the information he sought.
The wife impressed as having a better recollection of events than the husband. She willingly made concessions where she could not recall matters. She was also able to provide detail and context to historical events. For example, when asked about who located the C Town property, the wife responded that she, her father, his partner and some of the children found the property. When questioned further, the wife provided additional detail, including that she was pregnant at the time, they were with the selling agent and when first visiting the property their car became “stuck”. Although the husband had initially challenged the wife’s recollection of this event upon hearing the wife’s response, he did not challenge that part of her evidence further. The husband put to the wife the proposition that it was he who selected the C Town property. The wife denied that assertion and gave evidence that her father, Ms BB and “all of us decided to buy the farm”.
The wife’s recollection of events was generally more detailed than the husband and she was able to provide context as to when and how events occurred.
However, there were some parts of the wife’s evidence which were unimpressive and invited an inference that with respect to those matters she was less than frank with the court. In particular, her evidence as to her new partner’s employment and financial circumstances was unhelpful as was her evidence as to her role in the purchase of FF Street, Suburb N (“Suburb N property”) registered in her new partner’s name.
I will refer to those matters in more detail later in the judgment.

The Issues

The principal issues in dispute between the parties relate to:-
·The value of the parties’ interests in F Pty Ltd as trustee for the Glezos Family Trust. It is the wife’s case that the parties’ interest in that entity has a nominal value, whilst the husband asserts that the entity has significant value and further, that its true value has been concealed by the wife;
·The weight to be attributed to each parties’ contributions made during the course of the relationship. The wife asserts that greater weight should be given to her contributions both in operating the parties’ business interests and also in respect of her homemaker contributions. The husband’s position is that each party worked to the best of their abilities during the course of the relationship and therefore their contributions should be assessed as equal;
·The weight to be attached to indirect contributions made on behalf of the wife as a result of assistance both financial and non-financial from her father during the course of the relationship;
·The extent of each party’s income-earning capacity. The wife alleges that the husband has capacity to earn income whilst the husband maintains that he has health issues which impede his ability to obtain employment;
·The extent of the wife’s interests in the Suburb N property;
·Whether the wife has failed to disclose assets; and
·Who should retain the C Town property.

The Law

The parties’ competing property applications are to be determined in accordance with the provisions of Part VIII of the Act. The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108. At page 121 the High Court stated that “[t]he power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down””. Section 79(2) of the Act provides that a Court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so.
That decision has been considered in detail by the Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) and more recently in Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
In Bevan at [73] the Full Court referred to the three “fundamental propositions” laid down by the High Court which should guide trial judges in approaching the task under s 79. They were summarised as follows:-
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(emphasis in original)
Accordingly, in determining competing applications pursuant to s 79 of the Act, the Court is required to:-
·Identify the parties’ respective legal and equitable interests in property;
·Determine whether, in accordance with s 79(2), it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive of the Act; and
·Consider the matters contained in s 79(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2) of the Act.
The Act does not prescribe the order in which the matters in s 79(4) of the Act are to be considered. The circumstances of individual marriages as to their nature and form differ; how parties have organised and lived within the marriage are factors which may be relevant in the exercise of the discretion pursuant to s 79(2) of the Act.
The Court’s approach may be less compartmentalised than was previously the case and a more “holistic” approach adopted, as was described by Murphy J in Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [13].

The Asset Pool

At the commencement of the hearing, both the husband and the wife submitted that the pool of assets available for division was that contained in the case outline relied upon by each of them referred to above. Counsel for the wife tendered an updated table of assets and liabilities during his closing submissions on 23 October 2017 (Exhibit W-15). That table identified the parties’ property interests at the conclusion of the hearing as follows:-

Assets

Legal Owner

Wife’s Value

Husband’s Value

D Street, Suburb E Husband $890,000 Agreed

J St, Suburb K
Less liabilities:

·   R Bank mortgage

·   GG Corporation fee

·   HH Council Municipal Rates

·   ATO

·   Land tax assessment
H Pty Ltd
$1,200,000

-$644,000

-$26,951

-$10,686

-$5,689

-$10,077

$502,597

Agreed

Agreed

Not known

Not known

Not known

Not known

B Street, C Town
Less liability:

·   C Town Rural City Council
Joint
$180,000

-$3,505
$176,495

Agreed

Not Known

Motor vehicle 2
Less liability:

·   Motor Vehicle Finance
Wife
$67,000

-$73,315
-$6,315

Not Known

Not known
Not known

Motor Vehicle 1 Husband $35,000 Agreed

Monies in trust – CBA Term Deposit Joint $12,530 Agreed

Part-property payment to Husband pursuant to Order dated 6 May 2016 Husband $11,000 Agreed

Part-property payment to husband pursuant to Order dated 1 June 2017 Husband $10,945 Agreed

Part-property payment to Husband Husband $20,000 Agreed

Part-property payment to wife Wife $20,000 Agreed

Boat and trailer Husband $30,000 Agreed

Furniture at D Street, Suburb E Joint $15,000 Agreed

F Pty Ltd atf Glezos Family Trust Wife Nominal Not Known

G Pty Ltd atf G Wife (appointor) Nil Not Known

H2 Pty Ltd atf Sgouros No. 2 Family Trust Wife (appointor) Nil Not Known

H Pty Ltd atf Sgouros Investment Trust Wife (appointor) Referred to above Not Known

Total Assets $1,717,252

Liabilities Legal Owner Wife’s Value Husband’s Value

Mastercard Wife $41,155 Not known

Capital Gains Tax (79 J Street, Suburb K) H Pty Ltd $81,089 Not known

Capital Gains Tax – B Street, C Town Joint $6,547 Not known

Legal costs:
U Solicitors
Berger Kordos Wife
$126,712

$49,775

Not known

Not known

Estimated Costs for trial $48,400 Not known

Loan to Mr Q Sgouros Husband Not known $87,000

Total Liabilities $353,678 $87,000

Net Pool $1,363,574 $1,693,475

During the course of closing argument, the contentious issues with respect to the wife’s updated table of assets and liabilities were identified as follows:-
(a)GG Corporation fees, HH Council rates and land tax alleged to be owing in relation to the property at J Street, Suburb K;
(b)Rates owing in relation to C Town;
(c)Motor vehicle 2 owned by the wife;
(d)Value of the parties’ interests in F Pty Ltd as trustee for Glezos Family Trust;
(e)Value of the parties’ interests in G Pty Ltd as trustee for G Family Trust;
(f)Mastercard liability alleged by the wife;
(g)Capital gains tax liabilities in respect of the properties at Suburb K and C Town;
(h)The parties’ legal costs; and
(i)Alleged undisclosed assets of the wife.

F Pty Ltd atf Glezos Family Trust

F Pty Ltd (“FPL”) is the trustee for the Glezos Family Trust. FPL is the entity through which the business is operated. FPL was established after the parties’ separation in April 2012. It was an entity established by the wife to enable her to continue to operate the business following separation. The wife is the sole director of FPL.
Pursuant to orders made on 14 October 2015 the parties engaged Mr T as the single expert valuer to value FPL. In addition, Mr T was engaged by the parties to value the entity, G Pty Ltd.
Mr T has prepared three valuation reports in respect of FPL, his first being a valuation report dated 22 October 2014, his second being a valuation report dated 22 December 2015. Those valuation reports together with answers to questions in respect of the second report are annexed to Mr T’s affidavit filed 1 August 2016. In addition to those reports, Mr T prepared an updated valuation report of FPL dated 13 September 2017 (“September 2017 report”) (Exhibit W-11).
As to the value of FPL, the wife’s case is that the business operated by it is struggling and has a nominal value. In contrast, the husband’s case is that at the time of separation the business was thriving, and it has continued to be so since the wife commenced its operation through FPL. The husband asserts that the wife has concealed the true value of the business which he asserts is substantial.
In his first valuation report of October 2014, Mr T assessed the value of FPL to be $9,500. Mr T has assessed the value of FPL based on the value of the entity’s notional realisable assets. He has not valued the entity on future maintainable earnings due to concerns as to the future viability of the business.
In his December 2015 report, Mr T reassessed the value of the business, based on figures as at 30 June 2015, as $182,448. Again the valuation was prepared based on the notional realisation of assets rather than future maintainable earnings. For the year end 30 June 2015, Mr T reports that the earnings before interest and tax for the entity was ($15,677). He also noted the decrease in sales volumes for FPL and further that the sales are concentrated on one client, JJ Pty Ltd. He reports that FPL’s sales have been impacted by the decision of JJ Pty Ltd to source goods from overseas due to the strength of the Australian dollar. As a result, the volume of orders received from JJ Pty Ltd from 2012 to 2015 has steadily reduced. Mr T confirms at page 24 of his affidavit that he has had confirmation from JJ Pty Ltd that FPL will be used for domestic supply only as well as emergency orders for the foreseeable future. On the same page of his report he notes the steady decline in FPL’s order history over the past five years which has reflected the downturn in its profitability.
The principal difference between the value of FPL in the October 2014 and December 2015 reports is the value attributed to stock on hand. In the December 2015 report, the stock figure noted in the 2015 financial statements was $32,500. Mr T assessed that stock on hand at that value would have a realisable value of approximately $100,000 when sold as part of a finished product. He notes in his report at page 25 the wife’s assertion as to the stock on hand being obsolete due to a faulty production method. Mr T notes that there was limited evidence available to him to support that assertion by the wife. In the circumstances he placed a mid-point valuation of $50,000 on the stock on hand.
The other significant change between the two valuations is the increase in value of trade debtors to $180,000.
Mr T’s September 2017 report is based on financial statements for FPL for the year ending 30 June 2016. His valuation based on those figures is $221,045. Again that valuation is based upon realisable asset value. However, Mr T adjusts that valuation to take into account payment of beneficiary distributions to the wife’s new partner, the parties’ children and an investment trust. Allowing for the payment of those entitlements the value of FPL is reduced to $124,660.

In his September 2017 report Mr T notes that FPL operates as a contractor “on a job-by-job basis which further reflects the lack of a going concern principal”. He further notes the decline in the industry in Melbourne due to rising costs of local production and the increased influx of foreign made goods at extremely competitive rates. Those factors have resulted in Mr T questioning the feasibility of FPL continuing to trade solvent past the next six months.
In the conclusion of his September 2017 report, Mr T confirms that he places no value on goodwill or the operations as a going concern. He states that:-
…without [the wife] the business would cease to operate.
As stated previously, my valuation is NOT based on a going concern basis. My investigations have determined that in all likelihood, the operation continues to trade whilst insolvent at this present point in time. Additionally, the business is in fact simply an extension of the personal intellectual property held by [the wife] and should she be unable to work within the operations, then the business would in essence cease to operate.
Therefore, I do not believe that there would be a buyer willing to pay for the business and as such I have valued the business on the basis of the realisable value of the assets.
Prior to giving oral evidence, Mr T was provided with a copy of the financial statements for the Glezos Family Trust for the year ended 30 June 2017 (Exhibit W-7). Based on those figures, Mr T assessed the net asset position of the business at $4,029. If unpaid present entitlements are taken into account the value is reduced to nil.
Mr T was cross-examined by both counsel for the wife and the husband in respect of his valuation. There was no challenge to Mr T’s expertise. His Curriculum Vitae is Annexure CL-1 to his affidavit. Mr T is an accountant having obtained degrees in Bachelor of Business (Accounting) and having completed post-graduate programs to be qualified as a Certified Practising Accountant. In addition to his accounting qualifications, he confirmed during his oral evidence that he has worked within industry and has familiarity with manufacturing businesses in that sphere. In that context, he confirmed that the wife’s evidence as to her principal client, JJ Pty Ltd’s decision to outsource production of their goods overseas as from 2012 was consistent with industry practice.
Mr T confirmed during his oral evidence that he had attended the factory site at the Suburb K property and inspected the machinery, stock remnants and showroom. In addition to those enquiries Mr T confirmed that he made independent enquiries of his associates within the valuation industry to confirm asset values.
During cross-examination by the husband Mr T confirmed that he had not attended the factory site since approximately 2014. Hence in his updated valuation where he makes no allowance for the value of chattels such as the forklift, he has relied upon statements made to him by the wife in respect of those matters. Similarly, as to the positon of debtors of FPL in his September 2017 report he noted that the FPL debtors for year end 30 June 2016 were $328,719. However that sum was reduced by him in his assessment as a result of discussions he had with the wife. In his September 2017 report he notes under the heading “ Trade Debtors” as follows:
…
In discussions with [the wife] I was informed that the debts may be uncollectable as the owner of [JJ Pty Ltd] is seriously ill and the bank appear to have stepped in to protect the debt position. In my experience this places a significant risk on the realisable value, however as I do not have confirmation of this event, and given the timeframe I have elected to carry forward the previous valuation value of $180,000 representing the fairest position at this point, supported by the previously provided annexure from [JJ Pty Ltd] supporting this value.
Mr T conceded that if the information provided by the wife was inaccurate, then an allowance of $328,000 should be made in respect of trade debtors. The impact to the value of FPL if there were such an adjustment would be to increase its value as at 30 June 2016 by approximately $148,000, being the difference between the actual debtors ($328,000) and the amount allowed by Mr T in his report ($180,000).
The Financial Statements for the Glezos Family Trust for 30 June 2017 (Exhibit W7) disclose trade debtors of approximately $173,000. The wife’s accountant informed Mr T by email dated 14 September 2017 that the amounts previously invoiced and disputed by JJ Pty Ltd had been written off as bad debts (Exhibit W-12). Relying on that information, Mr T assessed the value of the business as at 30 June 2017 as nil.
In addition to the adjustment for write-offs Mr T also noted during his oral evidence that there had been an increase in the amount allowed for rental of the Suburb K property. That rental increase was from approximately $59,000 in 2016 to $98,000 in 2017. The increase in that liability was attributable to the inclusion of body corporate fees, land tax fees and rates.
Mr T conceded, quite properly in my view, that the accuracy of his report was dependent upon the information provided to him by the wife.
Mr T confirmed during his oral evidence that there had been a significant movement in the creditors of the business, that movement being from zero to $133,000 between the 2016 and 2017 financial years. He confirmed that he would need detail behind those figures before he could confirm that they are actual liabilities of the business. He confirmed that he had not been provided with any particulars in relation to those alleged liabilities.
Mr T also confirmed that the wife receives benefits from the business, including payment of the motor vehicle expenses in respect of the Motor vehicle 2 registered in her name, payment of rental in respect of the Suburb K property occupied by the business. Mr T also observed that the record-keeping for the business was poor.
The wife was cross-examined extensively by the husband in relation to her operation of the business. Unfortunately the husband’s approach to his cross-examination on that topic was lacking in focus and scattered, which meant that the information adduced from the wife did little to assist his case. For example, during his cross-examination the husband focussed on questions regarding the turn-over for the business. He sought to rely upon MYOB statements for the business for a six-month period from 1 July 2016 to 31 December 2016 to support his contentions (Exhibit H-4). It became evident during his cross-examination of the wife that the husband did not understand the document upon which he was cross-examining; it was clear from the questions he asked that he interpreted the opening balance on the statement as representing business turn-over, rather than the difference between the opening balance and the closing balance being the turn-over for that period. The impact of that error was that he attempted to put to the wife that the turnover for the period was approximately $2,950,000 rather than approximately $250,000. It was difficult to shift the husband and re-focus him in relation to that issue. The same error was repeated in his interpretation of monies expended on outside contractors, telephone and car tolls for the business.
During his cross-examination of the wife, the husband complained that he needed a forensic accountant. I reminded the husband that he had had ample opportunity to engage experts to assist him and that he had not availed himself of those opportunities. The husband questioned the wife as to the significant reduction in turn-over from the period pre-separation to the current period. The wife confirmed that the business had been significantly more profitable during the relationship. She explained that the downturn in profitability was primarily attributable to the clients of the business sourcing products from off-shore suppliers. The husband put to the wife that she had been making millions of dollars. The wife rejected that proposition.
The evidence of Mr T has been consistent across three reports as well as in his oral evidence. That evidence is that the business is heavily reliant upon the effort of the wife and further that it has been deeply impacted as a result of its principal client sourcing its product off-shore. The figures for the business confirm that there has been a significant down-turn in that client’s order history. That down-turn dates back to 2009.[1] I accept that evidence.
[1] Affidavit of Mr T filed 1 August 2016, p 29.
The husband has adduced no evidence that satisfies me that I should disregard Mr T’s assessment as to the value of the business. Accordingly, I accept the evidence of Mr T and find that the business has no value.

The Suburb K Property liabilities

The wife alleges that the sum of $26,951 is outstanding in relation to owners’ corporation fees for the Suburb K property. In support of her allegation as to that liability, the wife relied upon her affidavit filed 5 May 2017. At paragraph 9 of that affidavit, the wife deposed as to the existence of the liability to the owners’ corporation. Annexure FPL-9 to that affidavit was a copy of the owners’ corporation fee notice dated 1 March 2017. The amount due in respect of the owners’ corporation fee for the Suburb K property as at 1 April 2017 was calculated to be $24,023.26. That liability related to unpaid fees for the period 1 July 2015 to 1 April 2017 inclusive. Since that time the quarterly levies have continued to accrue in relation to the Suburb K property.
It is the wife’s position that she has been unable to service that liability due to the downturn in the business conducted by her. As a result, the liability has been accruing since 2015.
The husband does not challenge the quantum of the liability. Rather it is his position that the business conducted by the wife is profitable; he questions why the wife has not met that liability given his belief that she continues to conduct a profitable business. The husband adduced no evidence to support his contentions as to the profitability of the business.
The wife also claims liabilities in respect of the HH Council Municipal rates for the Suburb K property. She alleges that the amount outstanding in respect of that liability is $10,686. Annexure FPL-10 to her affidavit filed 5 May 2017 is a copy of the rates instalment notice in respect of that liability. The wife’s evidence is that she has been unable to pay that liability from income from the business.
The husband does not challenge the quantum of that debt but rather maintains his position that the wife should have met the liability from the income earned in the business.
The wife also alleges that there are unpaid land tax assessments in respect of the Suburb K property. The total amount outstanding in respect of land tax is $10,077.83. Annexure FPL-4 to the wife’s affidavit filed 5 May 2017 attaches the notices in respect of that liability. The land tax has been accruing since 2012. Currently, the wife is meeting that liability by payment of quarterly instalments.
Again, the husband does not challenge the quantum of the liability but is critical of the wife for not servicing that debt from income earned from the business.
Whilst the husband asserts that the wife had sufficient income to meet payment of the outstanding liabilities in respect of the Suburb K property, that assertion is not supported by the evidence. I am not satisfied that the wife’s income from the business was sufficient to meet those liabilities. The liabilities relate to property acquired by the parties, through their corporate entity, during the course of the marriage. That property continues to be held by the parties’ through that entity. In circumstances where there is no challenge to the existence of the liability, I am satisfied that justice and equity requires that the responsibility to meet those liabilities rests with both parties and should be included in the calculation of the parties’ asset pool.

The wife’s Motor vehicle 2

The wife seeks to include in the parties’ interests a Motor vehicle 2 purchased by about 2017 following the parties’ separation. The wife alleges the vehicle is valued at approximately $67,000 and has a finance agreement liability of approximately $73,315. The wife’s evidence is that the motor vehicle is used in the business and is paid for by the business. In circumstances where it is a post-separation acquisition which is funded by the business, I am not satisfied that it is appropriate that that liability be taken into account in assessing the parties’ entitlements.

Rates for C Town

In her affidavit filed 5 May 2017 the wife deposes that there are outstanding rates for the C Town property for the year ending 30 June 2017. The wife deposes that she has had insufficient income to meet that liability. Although the sum of $3,505 is claimed in the updated table of assets and liabilities prepared on behalf of the wife (Exhibit W-15), exhibit FPL-8 to the wife’s affidavit discloses a liability of $2,221.29. Again, there was no challenge by the husband to the quantum of that liability. I am satisfied that it is appropriate that that liability in the amount proven, being $2,221.29, be taken into account in the assessment of the parties’ interests.

G Pty Ltd atf G

G Pty Ltd atf for G Family Trust (“G”) is an entity established by the wife in 2007. The wife is the sole director of G. The entity was created to provide a vehicle for the wife to conduct business. To that end, the wife established a website for G. The wife’s evidence is that G does not trade. At paragraph 38 of her trial affidavit filed 11 March 2016 the wife deposes that since 2009 there have been three years in which G has made nominal profits and otherwise, the entity has traded at a loss.
The wife was cross-examined by the husband with respect to her operation of G. The husband cross-examined the wife regarding the website and the wife confirmed that whilst the website still exists the company does not trade and has not done so for some time. I accept that evidence.
Mr T was engaged to prepare a valuation report in respect of G. Annexure CL-3 to his affidavit filed 1 August 2016 provides his report dated 24 October 2014 in relation to G. That report notes:-
…There have been bad debts incurred in relation to the … sales and issues with unsold stock becoming obsolete. The website (…), which had been an attempt to bypass the [retailers] by sourcing customers directly has not been successful and the last activity on the site is dated June 2014.
From speaking with management I understand that [G’s] prospective market has not materialised despite innovative efforts made to boost sales.
As a recent start-up with no significant sales records and a sample selection of [stock] it was considered to have no realisable value.
…
There was no challenge to Mr T’s evidence as to the value of G. Accordingly, I accept that evidence and am satisfied that G has no value.

Capital Gains Tax – 70 J Street, Suburb K

The wife asserts that the sum of $81,089 should be included as a liability, being anticipated capital gains tax in respect of a sale of the Suburb K property. The orders sought by the wife in her Amended Outline of Case dated 3 August 2016 and confirmed during her evidence include orders that she retain the Suburb K property.
However, during closing submissions her counsel submitted that the wife may have to effect a sale of Suburb K in the event that the business conducted by her from that property ceases operation and she is unable to locate a suitable tenant for the Suburb K property. It was conceded on behalf of the wife during closing submissions that it is unlikely there will be an immediate sale of the Suburb K property but that such sale was a possibility if the business conducted by FPL ceased operation. Counsel for the wife submitted that such a sale would trigger a capital gains tax liability. Accordingly, it was submitted that even if that liability is not taken into account in the calculation of the parties’ interests, it is a matter that should be taken into account pursuant to s 75(2)(o) of the Act.
Since 2014 when Mr T prepared his first valuation report, the forecast for the future of the business conducted by FPL has been one of gloom with predictions that the business may have to cease trading. Such predictions were based upon information provided to Mr T by the wife. Notwithstanding those predictions, the wife has continued to conduct the business. Further, in the face of the apparent downturn in the profitability of the business since the parties’ separation, the wife has purchased a luxury motor vehicle, being the Motor vehicle 2. All of the expenses with respect to that vehicle are being met by the business.
During closing submissions, it was conceded by the wife’s counsel that her purchase of that vehicle was financially “silly”. In my mind the wife’s decision to purchase the vehicle and assume responsibility for the liability attached thereto is inconsistent with her assertions that the closure of the business is imminent. Mr T has prepared three written reports in relation to the business and in each of those reports has repeated the wife’s reservations as to the feasibility of the business continuing. What is clear from the wife’s evidence is that the business has generated sufficient income to enable it to service the mortgage liability in respect of the Suburb K property and the motor vehicle expenses.
The wife does not seek a sale of the Suburb K property as part of the final orders sought by her.
Having regard to the above matters I am satisfied that it is the wife’s intention to retain the Suburb K property rather than sell it.
The question of the treatment of capital gains tax was considered by the Full Court in Rosati & Rosati [1998] FamCA 38; (1998) FLC 92-804 at paragraph 6.36 as follows:-
It appears to us that although there is a degree of confusion, and possibly conflict, in the reported cases as to the proper approach to be adopted by a court in proceedings under s 79 of the Act in relation to the effect of potential capital gains tax, which would be payable upon the sale of an asset, the following general principles may be said to emerge from those cases:-
(1)Whether the incidence of capital gains tax should be taken into account in valuing a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.
(2)If the Court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.
(3)If none of the circumstances referred to in (2) applies to a particular asset, but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the Court, whilst not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s 75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.
(4)There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset. In such a case, it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.

Having regard to the evidence of the wife, I am not satisfied that the wife will sell the Suburb K property in the foreseeable future. In circumstances where the Court is not asked to order a sale of the property and I am not satisfied that a sale of the property is inevitable or likely to occur in the foreseeable future, in my view it would be inappropriate for capital gains tax to be taken into account in the calculation of the parties’ interests.
That view is bolstered in circumstances where there is no certainty as to the timeframe in which the wife would effect a sale of the property, or if a sale was to occur, what the sale price would be. In those circumstances, I am not in a position to calculate the quantum of capital gains tax that might be attracted in the event of such a sale.
Having said that, I am mindful that the wife is retaining an asset that may attract capital gains tax in the future. Accordingly, in my view it is appropriate that that matter be taken into consideration pursuant to s 75(2)(o) of the Act.

Capital Gains Tax – C Town

The wife also seeks that a sum of $6,547 be taken into account as capital gains tax that would be attracted in the event of a sale of the C Town property. There is no evidence before the Court that either party seeks a sale of the property; rather the position is that both parties seek to retain the property.
Absent evidence of a sale of the C Town property in the foreseeable future and in circumstances where the Court is not asked to order a sale of that property, I am satisfied that that liability should not be taken into account in the calculation of the parties’ interests.
The stated intention of both parties is that they seek to retain that property for the benefit of their children. In those circumstances in my view it is not appropriate that such liability be taken into account.

The Wife’s Credit Card

The wife alleges that she has a Mastercard liability in the sum of $41,155. The husband does not admit that liability.
The parties have been living separately for a period of more than seven years. The charges to the wife’s credit card relate to her expenditure in the post-separation period. Having regard to that circumstance I do not consider that that liability should be included in the parties’ pool of assets and liabilities.

Legal costs

Both the husband and the wife have incurred legal costs during the conduct of the proceedings, albeit that the husband elected to represent himself for part of the trial.
Exhibit W-1 is the costs statement prepared by the wife’s previous lawyers who represented her at the commencement of the trial. That statement provides that the amount incurred by the wife in respect of her legal costs was $83,808 of which $29,443 had been paid. The costs statement tendered on behalf of the wife by her current lawyers at the resumption of the hearing (Exhibit W-2) confirms that the wife has incurred the sum of $49,775 with those lawyers, of which the sum of $10,945 has been paid. Hence, based on that statement the sum of $38,830 was outstanding to her current lawyers as at the date of that statement. I have no doubt the wife incurred substantial additional amounts in the conduct of the final hearing. Whilst estimates as to the amounts to be incurred were provided in the costs statements, there is no evidence before me of the amounts actually incurred by the wife. The costs statements tendered on behalf of the wife in Exhibits W-1 and W-2 confirm that the amounts incurred by her total $133,583, of which sum $40,388 has been paid. Therefore, the balance outstanding is $93,195. I will allow that amount in respect of the wife’s legal costs.
The statement of costs tendered on behalf of the husband at the commencement of the hearing (Exhibit H-1) indicates that the costs incurred by the husband with his solicitors, KK Lawyers, totalled $34,640.89. The husband had also incurred costs with two other firms of solicitor prior to his engagement of KK Lawyers. There is no evidence before me as to the amounts incurred by the husband with those firms.
However, the husband alleges that he has borrowed the sum of $87,000 from his son Mr Q Sgouros in order to meet his legal costs. That liability is included in the husband’s Financial Statement filed 3 June 2016. There was no challenge by the wife in with respect of the husband’s liability for moneys advanced by the parties’ son. Accordingly, I will allow that liability.

Allegation of Undisclosed assets

Throughout the trial the husband asserted that the wife had been party to concealing assets. He alleged that the wife had transferred substantial sums of money off-shore.
It was common ground between the parties that the wife was principally responsible for the management of the parties’ financial affairs during the marriage.
The husband took issue with the wife’s withdrawals from the LL Finance loan, as the loan account was in the husband’s name. He relied upon Exhibit H-2, being the statement for the LL Finance account for the period 5 October 2005 to 15 January 2013 inclusive. The wife responded to the husband’s criticism by stating that she was a guarantor and signatory to the account. It was apparent from her evidence that the wife believed that as guarantor to the account she was entitled to make such withdrawals. She confirmed that she worked, managed the parties’ accounts and when they purchased a property, it was she who attended the bank to secure a loan.
During her oral evidence, when challenged as to amounts withdrawn from the LL Finance loan, the wife confirmed that the equity in the Suburb E property was used to facilitate the parties’ purchases of their investment properties.
During the relationship, the parties purchased investment properties, including the CC Street property and a property at MM Street, Suburb E. The wife’s evidence is that the original draw down on the LL Finance loan of $325,000 was applied towards the purchase of CC Street. Further, she confirmed during her oral evidence that the withdrawal of $40,000 in April 2006 was applied towards the purchase of MM Street. In addition, the wife confirmed that the sum of $72,000 withdrawn from the account in July 2007 was used to purchase a motor vehicle and the sum of $80,000 withdrawn in May 2008 was applied towards the purchase of the Suburb K property. The wife’s evidence in respect of those transactions was detailed and clear and consistent with the position of the parties that it was she who managed their financial affairs. It was apparent from the husband’s cross-examination of the wife in relation to these matters that he did not have a clear understanding or recollection as to how the parties’ funded the acquisition of the investment properties. I accept the wife’s evidence with respect to the withdrawals from the LL Finance account.
Notwithstanding his contentions as to the wife concealing assets and transferring substantial funds overseas, the husband has produced no evidence to support those assertions. Accordingly, I do not accept the husband’s contentions that the wife has undisclosed assets.

The Asset Pool

Based on my findings, the parties’ legal and equitable interests for the purposes of the orders I am asked to make are as follows:-

Assets

Legal Owner

Value

D Street, Suburb E

Husband

$890,000

J Street, Suburb K
Less liabilities:

·   R Bank mortgage

·   GG Corporation fee

·   HH Council Municipal Rates

·   ATO

·   Land tax assessment
H Pty Ltd
$1,200,000

-$644,000

-$26,951

-$10,686

-$5,689

-$10,077

$502,597

B Street, C Town

Less liability:

·   C Town Rural City Council

Joint

$180,000

-$2,221

$177,779

Motor Vehicle 2

Husband

$35,000

Monies in trust – CBA Term Deposit

Joint

$12,530

Part-property payment to Husband pursuant to Order dated 6 May 2016

Husband

$11,000

Part-property payment to husband pursuant to Order dated 1 June 2017

Husband

$10,945

Part-property payment to Husband

Husband

$20,000

Part-property payment to wife

Wife

$20,000

Boat and trailer

Husband

$30,000

Furniture at D Street, Suburb E

Joint

$15,000

F Pty Ltd atf Glezos Family Trust

Wife

Nil

G Pty Ltd atf G

Wife (appointor)

Nil

H2 Pty Ltd atf Sgouros No. 2 Family Trust

Wife (appointor)

Nil

Total Assets

$1,724,851

Liabilities

Legal Owner

Value

Legal costs:

Wife

$93,195

Loan to Mr Q Sgouros

Husband

$87,000

Total Liabilities

$180,195

Net Pool

$1,544,656

Section 79(2)

Both parties ask the Court to make orders for adjustment of property pursuant to s 79 of the Act. There was no challenge to the proposition that it is just and equitable to make orders for property settlement. Accordingly, in circumstances where the parties have shared a long marriage and it is agreed by them that they will no longer have the joint use and enjoyment of their property, I am satisfied that it is just and equitable to make orders for adjustment of their interests.

The parties’ initial contributions

It was common ground between the parties that neither had any assets of significance at the commencement of the relationship. At that time both the husband and the wife were employed by the wife’s father in his business, which then operated in Suburb NN.

Contributions during the marriage

The position of the husband, as set out in the Case Outline prepared on his behalf and dated 3 August 2016, is that the parties both worked in their businesses throughout the marriage, that each contributed their earnings to the acquisition, conservation and improvement of their properties and for the benefit and welfare of their children. Further, upon the husband ceasing to work in the business in 2009, he contends that he assumed greater responsibility for the care of the children and home duties. Although not stated in the Case Outline, it would appear from the manner in which his case was presented that the husband’s position is that the parties’ contributions during the relationship were equal.
In contrast, the wife alleges that she made significantly greater contributions to the acquisition, conservation and improvement of the parties’ interests during the marriage. She maintains that she was often the sole income-earner, working full-time save for the periods immediately prior to and following the birth of the parties’ children.
Further, the wife submits that she has continued to work and service the parties’ debts in the period following their separation. In particular she points to the fact that the husband has continued to live rent-free in the former matrimonial home at the Suburb E property for a period of seven years. As such, the wife submits that there should be an adjustment in her favour.
Further, the wife submits that contributions made on her behalf by her father during the course of the parties’ relationship support her contention that there should be an adjustment in her favour for her greater contributions during the relationship. In particular, she relies upon the provision by her father of the deposit for the purchase of the parties’ first home in Suburb AA, his direct financial contribution to the acquisition of the C Town property, as well as the physical labour expended by him in relation to the construction of the dwelling at the C Town property.
The wife is critical of the husband’s contributions in the period following him ceasing to work in the business in 2009. She submits that there was no physical impediment to him working and making a financial contribution to the family. Rather, she contends that the husband ceased work to pursue his recreational interests, being fishing and soccer.
The wife also relies upon the fact that she provided on-going financial support to the husband and the children following separation. The wife’s evidence was that she drew $20,000 from the LL Finance loan and applied that amount to the payment of $10,000 in respect of renovations to D Street, with the balance of $10,000 paid to the husband in weekly instalments of $500 per week. I do not accept the submission that such periodic payments is a contribution made by the wife to the husband’s support. Rather, those payments were made as a result of the wife drawing on the parties’ capital in order to provide a source of funds to meet the needs of the husband and the parties’ child Mr OO, who was living with the husband.
As a result of those matters the wife submits that there should be an adjustment for contributions in her favour. The wife seeks an adjustment of 5 per centum in her favour as a result of those matters.
It is common ground between the parties that the wife was principally responsible for the operation of the business and for the financial decisions taken by them during the course of the relationship.
It is also common ground between the parties that the husband worked in the business up until 2009. Thereafter he remained in the home.
The evidence of both parties supports a finding that each worked long hours in the business operated by the wife’s father and subsequently their own business until the husband’s retirement. The parties were assisted in their endeavours by members of the wife’s family who cared for the parties’ children whilst they worked. Having regard to the parties’ evidence, I am satisfied that each party contributed to the best of their abilities until the husband’s retirement in 2009.
Following his retirement, the husband asserts that he was principally responsible for the care of the parties’ children and homemaker duties. The wife disputes that evidence. She gave evidence that the husband was an unreliable carer of the children. Her evidence was that she continued to be principally responsible for ensuring the children’s attendance at school. It was her evidence that the husband devoted more of his time to the pursuit of recreational activities including soccer and fishing.
The husband’s evidence in his trial affidavit material was that he ceased work due to an injury to his knee. However, during cross-examination the husband conceded that he stayed home at the request of the wife in order to look after the children. The husband conceded that it was agreed between he and the wife that he would stay home, care for the children and attend to cleaning whilst the wife’s role was to continue to operate the factory. The husband agreed with that proposition and confirmed that that arrangement was implemented in part as a result of the production of garments moving off-shore.
During the course of his evidence, the husband conceded that he continued to play sport until about 2013, notwithstanding his alleged knee injury. Further, the husband confirmed that he was absent from the home fishing most weekends, weather permitting.
As a result of the husband’s commitment to those recreational pursuits the wife’s evidence is that the responsibilities for the care of the children and the home largely fell to her. It was her evidence that the upkeep of the home largely fell to her.
I prefer the evidence of the wife as to the parties’ respective roles in the period following the husband’s retirement from the business. The husband’s evidence as to the circumstances giving rise to him ceasing to work in the business was contradictory. Notwithstanding his previous statements as to an injury being the catalyst for his retirement from the business, it was apparent that he maintained an active involvement in his recreational pursuits following his retirement.
Accordingly, I accept the wife’s evidence that from 2009 to the time of the parties’ separation in 2011 the wife continued to be responsible for the operation of the business as well as making significant contributions to the home and the welfare of the family.

Contributions by the wife’s father

The wife also contends that additional weight should be afforded to the contributions made on her behalf by her father. As I have noted it is common ground between the parties that the deposit on the Suburb AA property was advanced by the wife’s father. The Suburb AA property was purchased in about 1986 and the wife’s father contributed the deposit of approximately $30,000.
Although on the face of the parties’ trial affidavit material they appeared to be in dispute as to the contributions made by the wife’s father to the acquisition of the C Town property, during the course of the husband’s oral evidence, he conceded that the funds for the purchase of that property were sourced from the wife’s father. It became apparent that the issue between the parties was whether the advance of those funds was to compensate the parties for their work in the business operated by the wife’s father.
During cross-examination, the wife conceded that she and the husband were not paid a wage by her father for the period of approximately 15 years that they worked for her father’s business. She conceded that her father never paid them for their work.
It was then put to the wife by the husband that the reason why the C Town property was purchased with funds advanced by her father was to compensate she and the husband for their years of unpaid work. The wife disagreed with that proposition. She stated that the parties and their children lived with the wife’s father and his partner and were supported by them during the period they worked in his business.
The C Town property was purchased by the parties in 1999 for the sum of $153,000 with moneys advanced by the wife’s father. It was registered in the parties’ joint names.
As highlighted previously, it was conceded by the husband that the wife’s father laboured on the C Town property constructing a dwelling and establishing the gardens at the property. The husband assisted the wife’s father with aspects of the construction. It is also common ground between the parties that the wife’s father has had the use and enjoyment of the property since its acquisition. The evidence before me is that the wife’s father continues to use the C Town property most weekends.
All of the outgoings with respect to the C Town property are met by the parties. The agreed value of the C Town property is $180,000. Hence there has been little improvement in the value of the property since its acquisition almost 20 years ago.
Having regard to the evidence of the parties, I am satisfied that the wife’s father provided direct financial assistance to them in the early years of their marriage and in relation to the acquisition of the C Town property. He also made significant contributions to the improvement of that property.
Whilst I am satisfied that the father has made contributions as identified above, it must be recognised that the contributions to the Suburb AA property were made 32 years ago, and in respect of the C Town property, nearly 20 years ago. Further, whilst the wife’s father made direct financial contributions to the acquisition of the C Town property, the parties’ financial arrangements were intertwined with those of the wife’s father. The concession by the wife that she and the husband were not paid wages for a period of about 15 years is significant. There is no evidence before the Court to assist in an assessment of what the parties’ employee entitlements may have been over that period, nor is there any evidence before the Court to inform it as to the costs associated with the support of the parties and their family over that period.
What is clear is that the property purchased with moneys advanced by the wife’s father is registered in the joint names of the parties. At the time of its acquisition the clear intention of the parties’ and the wife’s father was that it be jointly owned by the parties. The wife’s father has not given evidence in the proceedings nor does he assert any interest in the C Town property. Having regard to those matters, I accept the husband’s evidence that the moneys advanced for the C Town property were paid in recognition of the efforts of both the husband and the wife in her father’s business.

Having regard to those findings, I do not accept the submission made on behalf of the wife that there should be any adjustment in her favour as a result of the moneys advanced by her father.

Assessment

The parties have shared a relationship that spanned a period of 28 years and produced seven children. Both worked hard in their respective roles, initially in the wife’s father’s business and then subsequently in the business operated by them. The parties had support from the wife’s family. The husband gave evidence that the wife’s sisters assisted with child-care in the early years of the relationship. Further, as I have found, the parties had the benefit of direct financial assistance from the wife’s father. For the reasons outlined earlier I am not persuaded that there should be any adjustment in favour of the wife as a result of that assistance.
I am satisfied that in the period from 2009 onwards the husband did not contribute to the operation of the business. Further, I am satisfied that notwithstanding the husband’s contention that he assumed primary responsibility for the children and the upkeep of the home, that the wife continued to play a significant role in that sphere.
Having observed the husband during the course of the trial and having heard his evidence, I am satisfied that in many respects, he has maintained a traditional view as to the roles of the parties within the home. At the time of the husband’s retirement from the business, five of the parties’ children had attained the age of 18 years and the two younger children were aged 15 and 11 respectively. Hence the demands on the parties in terms of their parenting roles had significantly reduced as compared to the period when they were parents to seven children under the age of 18.
The wife submits that she should have some adjustment to take into account the contributions made by her after the parties’ separation. She relies upon the financial support provided by her to the husband during that period, the fact that she has continued to operate the business and service liabilities in relation to the Suburb K property in that period. As I have noted, the financial support provided by the wife was drawn from capital. To that extent, I am not satisfied that the wife is entitled to any greater weight for those contributions. Further, whilst the wife has conducted the business and paid the mortgage on the Suburb K property in the post-separation period, she has also retained the benefits from the business in that period. The wife has not met all liabilities with respect to the parties’ properties. As I have indicated earlier, I propose to include those liabilities in the calculation of the parties’ assets and liabilities available for division. Finally, I note that it was the decision of both parties that the husband should cease to work in the business. Given that position, I am not satisfied that there should be any adjustment in favour of the wife in relation to her post-separation contributions.
Having regard to all of those matters I am satisfied that the parties’ contributions are equal.

Section 75(2) Factors

The husband is aged 62 years. He has not worked in paid employment since 2009. He is reliant upon Centrelink benefits for his income.
The wife is aged 52 years and operates the business, from which she earns an income of approximately $30,000 per annum. In addition, her motor vehicle expenses are met by the business.
The wife has re-partnered. Her new husband conducts a business. In her Financial Statement filed 11 March 2016 the wife discloses that her husband has an income of $1,000 per week and that he contributes $500 per week towards her daily living expenses.
The wife has been less than frank with the Court as to the financial position of her new partner. During the course of the wife’s evidence she confirmed that her new partner has purchased a property at Suburb N. Further, the wife, with her current husband, has borrowed funds to facilitate that purchase. It was only during cross-examination that the wife disclosed her involvement in that transaction. Similarly it was only during cross-examination that the wife disclosed that her current husband had recently acquired an interest in a business. Throughout her oral evidence the wife was resistant to providing any information regarding her partner’s income or financial position. That approach to her obligations in respect of disclosure did her no credit.
The wife continues to operate the business. Since 2014 the wife has asserted that the business is unprofitable and is likely to close down. Nonetheless she has continued to operate the business. Further as recently as 2017, she purchased a Motor vehicle 2, the expenses for which are funded by the business. I am satisfied that the wife has the capacity to continue to operate the business or alternatively if she does elect to cease operation of that entity, to obtain gainful employment. Throughout the proceedings the wife impressed as hard-working and committed to ensuring her financial security.
The wife also has the advantage of living with a partner who also operates his own business. They are able to share their income as well as their expenses. They are sufficiently secure as to have had the ability to borrow funds to purchase a property at Suburb N.
Neither party is responsible for the support of another person.
Counsel for the wife was critical of the husband, particularly that he had never attempted to secure employment following his retirement from the business. In those circumstances it was submitted that there should be no adjustment for s 75(2) factors.
Whilst the wife is critical of the husband for failing to obtain employment, the evidence of both parties is that the decision for him to cease working in the business was one jointly taken by them during the marriage. I am satisfied that given the husband has not worked for a period of 9 years, has no training or qualifications and where English is not his first language, at age 62 he is unlikely to obtain employment.
In contrast the wife is nine years younger, has an established business and a partner who also works and is able to contribute to her expenses. The wife will retain the properties at Suburb K and C Town and her partner holds the property at Suburb N.
Having regard to all of the above matters, I am satisfied that there should be a modest adjustment in favour of the husband to take into account the disparity in the parties’ income earning capacities. I am satisfied that an adjustment of 2.5 per centum in favour of the husband is appropriate. Based on a pool of $1,544,656, that is an adjustment of approximately $77,000.

Conclusion

Having regard to my findings pursuant to s. 79(4) of the Act I am satisfied that there should be a division of assets on the basis that the husband receives 52.5 per centum and the wife receives 47.5 per centum of the available pool.
It is common ground between the parties that the husband should have the opportunity to retain the Suburb E property and the wife retain the Suburb K property. At issue is who should retain the C Town property. Given the history of direct and indirect contributions made to the C Town property by the wife’s father, coupled with his continuing occupation of the property, and the concession made by the husband that the wife’s proposition that the property be retained for the benefit of the parties’ children is appropriate, I am satisfied that that property should be retained by the wife.
Based on a pool of assets of $1,544,656, an adjustment of 52.5 per cent results in the husband being entitled to assets valued at $810,944 and the wife having an entitlement to assets valued at $733,712, being 47.5 per cent of the pool.
The husband will retain the Suburb E property, his motor vehicle, boat and trailer, chattels and amounts received by way of part property settlement. He will also be responsible for the debt to the parties’ son in respect of his legal costs. The value of the assets to be retained by him is $924,945.
The wife will retain the properties at Suburb K and C Town. She will also retain the amounts received by way of part property settlement as well as the Commonwealth Bank term deposit and she will be responsible for her identified legal costs. Taking account of those matters, the assets retained by her are valued at $619,711. In order to receive 47.5 per cent of the pool, the husband will be required to make a payment to her of $114,000.
Accordingly, he will be required to pay to the wife the sum of $114,000. I will allow him a period of 60 days to pay that amount, failing which the Suburb E property will be sold and the wife’s entitlements together with interest thereon will be deducted from the sale proceeds.
In the circumstances of the case, having regard to all of the matters set out above, I consider the orders I make will be a just and equitable result as between the husband and the wife.
The orders I will make, subject to submissions as to form can be found at the beginning of this judgment

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 February 2019.

Associate:

Date: 6 February 2019

[2019] FamCA 63

6 February 2019

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction

Constructive Trust

Fiduciary Duty

Assets	Legal Owner	Wife’s Value	Husband’s Value
D Street, Suburb E	Husband	$890,000	Agreed
J St, Suburb K Less liabilities: · R Bank mortgage · GG Corporation fee · HH Council Municipal Rates · ATO · Land tax assessment	H Pty Ltd	$1,200,000 -$644,000 -$26,951 -$10,686 -$5,689 -$10,077 $502,597	Agreed Agreed Not known Not known Not known Not known
B Street, C Town Less liability: · C Town Rural City Council	Joint	$180,000 -$3,505 $176,495	Agreed Not Known
Motor vehicle 2 Less liability: · Motor Vehicle Finance	Wife	$67,000 -$73,315 -$6,315	Not Known Not known Not known
Motor Vehicle 1	Husband	$35,000	Agreed
Monies in trust – CBA Term Deposit	Joint	$12,530	Agreed
Part-property payment to Husband pursuant to Order dated 6 May 2016	Husband	$11,000	Agreed
Part-property payment to husband pursuant to Order dated 1 June 2017	Husband	$10,945	Agreed
Part-property payment to Husband	Husband	$20,000	Agreed
Part-property payment to wife	Wife	$20,000	Agreed
Boat and trailer	Husband	$30,000	Agreed
Furniture at D Street, Suburb E	Joint	$15,000	Agreed
F Pty Ltd atf Glezos Family Trust	Wife	Nominal	Not Known
G Pty Ltd atf G	Wife (appointor)	Nil	Not Known
H2 Pty Ltd atf Sgouros No. 2 Family Trust	Wife (appointor)	Nil	Not Known
H Pty Ltd atf Sgouros Investment Trust	Wife (appointor)	Referred to above	Not Known
Total Assets	$1,717,252
Liabilities	Legal Owner	Wife’s Value	Husband’s Value
Mastercard	Wife	$41,155	Not known
Capital Gains Tax (79 J Street, Suburb K)	H Pty Ltd	$81,089	Not known
Capital Gains Tax – B Street, C Town	Joint	$6,547	Not known
Legal costs: U Solicitors Berger Kordos	Wife	$126,712 $49,775	Not known Not known
Estimated Costs for trial	$48,400	Not known
Loan to Mr Q Sgouros	Husband	Not known	$87,000
Total Liabilities	$353,678	$87,000
Net Pool	$1,363,574	$1,693,475

Assets	Legal Owner	Value
D Street, Suburb E	Husband	$890,000
J Street, Suburb K Less liabilities: · R Bank mortgage · GG Corporation fee · HH Council Municipal Rates · ATO · Land tax assessment	H Pty Ltd	$1,200,000 -$644,000 -$26,951 -$10,686 -$5,689 -$10,077 $502,597
B Street, C Town Less liability: · C Town Rural City Council	Joint	$180,000 -$2,221 $177,779
Motor Vehicle 2	Husband	$35,000
Monies in trust – CBA Term Deposit	Joint	$12,530
Part-property payment to Husband pursuant to Order dated 6 May 2016	Husband	$11,000
Part-property payment to husband pursuant to Order dated 1 June 2017	Husband	$10,945
Part-property payment to Husband	Husband	$20,000
Part-property payment to wife	Wife	$20,000
Boat and trailer	Husband	$30,000
Furniture at D Street, Suburb E	Joint	$15,000
F Pty Ltd atf Glezos Family Trust	Wife	Nil
G Pty Ltd atf G	Wife (appointor)	Nil
H2 Pty Ltd atf Sgouros No. 2 Family Trust	Wife (appointor)	Nil
Total Assets	$1,724,851
Liabilities	Legal Owner	Value
Legal costs:	Wife	$93,195
Loan to Mr Q Sgouros	Husband	$87,000
Total Liabilities	$180,195
Net Pool	$1,544,656