Straka and Strom

[2015] FamCA 1184

FAMILY COURT OF AUSTRALIA

STRAKA & STROM [2015] FamCA 1184

FAMILY LAW – PROPERTY – where the parties cohabited for about 14 years before marriage breakdown – where the parties remained living separated under the one roof – where the parties remained living under the same roof for a decade post-separation – where the property pool is relatively modest – contributions – post-separation contributions – where the husband transferred his interest in a real property to his mother post-separation.

Family Law Act 1975 (Cth)

Bonnici & Bonnici (1992) FLC 92-272
Gosper & Gosper (1987) FLC 91-818
Kessey & Kessey (1994) FLC 92-495
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Straka

RESPONDENT: Mr Strom

FILE NUMBER: BRC 9756 of 2011

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 20 and 21 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Simonidis Steel Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Evans & Company Family Lawyers

Orders

It is ordered that:

1. Within thirty (30) days of the date of these Orders, the Wife shall confirm in writing to the Husband whether or not she has approval of finance from a recognised lending institution to enable the Wife to pay to the Husband, within sixty (60) days of the date of these Orders, the amount of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000) in exchange for all of the Husband’s right, title and interest in the property situated at H Street, Suburb P, Queensland (“the P property”).

2. In the event that the Wife confirms such approval, then within sixty (60) days of the date of these Orders:

   (a)       The Husband shall do all acts and things reasonably required to secure the discharge and release of the mortgage registered upon the title of the    P property and shall indemnify the Wife and keep her            indemnified with      respect to the Suncorp Bank X loan …60;            and

   (b)       The Wife shall pay to the trust account of the solicitors for the Husband         the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS      ($120,000) in exchange for an executed transfer in registerable form of      the Husband’s right, title and interest in and to the P        property.

3. In the event that the Wife does not confirm the approval of finance referred to in Order (1) within the time period provided for, then this Order shall take effect and within forty-five (45) days of the date of these Orders the Husband shall confirm in writing to the Wife whether he elects to, either:

   (a)       Pay to the Wife within sixty (60) days of the date of these Orders the   sum of THREE HUNDRED AND THIRTY THOUSAND DOLLARS        ($330,000) in exchange for the transfer by the Wife to the Husband of        all her right, title and interest in and to the P property; OR

   (b)       Have the P property sold.

   PROVIDED ALWAYS that the Husband shall have the same right of election should the Wife, having confirmed the finance approval provided for in Order (1), fail to make the payment provided for in Order (2)(b) as a consequence of her own default with that right of election becoming operable upon such default.

4. Should Order (3) come into effect and the Husband makes the election provided for in Order (3)(a) then:

   (a)       The Wife shall do all acts and things reasonably required to cause any   caveat she has caused to be registered upon the title of the P property to    be removed no later than sixty (60) days from the date     of these Orders; and

   (b)       Within sixty (60) days of the date of these Orders the Husband shall     cause to be paid to the trust account of the solicitors for the Wife the     sum of THREE HUNDRED AND THIRTY THOUSAND DOLLARS      ($330,000) in exchange for an executed transfer in registerable form of            the Wife’s right, title and interest in and to the P property.

5. The P property shall be forthwith listed for sale, and the parties shall do all acts and things reasonably required to list the property for sale, if either of the following events occurs, namely:

   (a)       Order (3) becomes operative and the Husband makes the election        provided for in Order 3(a) but as a consequence of his own default fails            to make the payment required; or

   (b)       Order (3) becomes operative and the Husband makes the election        provided for in Order 3(b).

6. In the event that it is necessary to list the P property for sale in accordance with Order (5) then:

   (a)       The Wife shall forthwith nominate to the Husband a panel comprising   the names of three (3) registered real estate agents holding listings for   properties for sale in the area where the P property is            situated;

   (b)       The Husband shall select from that panel the name of the real estate      agent to market the property for sale by private treaty;

   (c)       Both parties shall do all acts and things reasonably required to list the property for sale by private treaty with the real estate agent at a price to         be agreed upon between the parties or, failing agreement, at a price            determined by the Chief Executive Officer of the Real Estate Institute of            Queensland;

   (d)       Each party shall do all acts and things reasonably necessary to effect the         sale of the property and to cooperate with the reasonable requests of the    marketing real estate agent and in the case of the Wife she shall maintain            the property in good order for, and allow, reasonable inspections by           prospective purchasers;

   (e)       Should the property remain unsold at the expiration of sixty (60) days from the date of its listing for sale by private treaty, then both parties            shall do all acts and things reasonably required to authorise the real estate agent to sell the property at public auction and the parties shall   each follow the reasonable recommendations of the real estate agent as       to the setting of a reserve price and the other terms and timing relating to that auction and any further auction/s necessary to effect a sale.

7. Upon the sale of the P property the proceeds of sale shall be applied in the following manner and order of priority:

   (a)       To discharge agent’s commission and costs of sale;

   (b)       To discharge the mortgage debt registered upon the property;

   (c)       The balance amount to each party in the sums necessary to achieve          an overall division of 55%/45% in favour of the Husband, taking         into account:

   (i)The balance amount of net proceeds;

   (ii)The Husband’s interest in the Suburb B property at

   $240,000;

   (iii)The Husband’s superannuation at $104,841;

   (iv)The Wife’s superannuation at $34,822.

8. Save and except as is otherwise expressly provided for in these Orders, each party shall:

   (a)       Retain free from any and all claims of the other any asset,         superannuation interest or financial resource currently in their name or        possession; and

   (b)       Bear responsibility for and indemnify the other and keep them   indemnified against any debt or liability in their name.

9. Each party shall do all acts and things including signing any necessary documents as may be necessary to give effect to the terms of these Orders, failing which pursuant to s 106A of the Family Law Act 1975 (Cth) the Registrar of this Court is hereby empowered to do such things and sign such documents as may be necessary so as to give effect to the terms of these Orders on behalf of and in lieu of any defaulting party.

10. Each party shall have liberty to apply with respect to the interpretation or implementation of these Orders upon the giving of seven (7) days’ notice of such application to the other party.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending paragraph (7).

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9756 of 2011

Ms Straka

Applicant

And

Mr Strom

Respondent

REASONS FOR JUDGMENT

1. The unusual feature which permeates these proceedings and the parties’ competing applications for property settlement orders[1] is that despite their marriage breakdown and separation in January 2002 (after some 14 years of cohabitation and marriage producing two children) the parties:

   a)Continued to live under the same roof in the former matrimonial home (still owned jointly) for a further 10 years;

   b)Continued in that circumstance to each provide support, both financial and non-financial, to their two children who were aged 11 years and nine years respectively at the time their marriage broke down;

   c)Did not seek, either upon their marriage breakdown or at any time proximate to it, to bring an end to their financial relationships and indeed some conduct, as will be discussed, appears contrary to pursuing an end to their financial relationships.

   [1] Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. The central issues in the case relate to, first, how property acquired or disposed of in that 10 year post-separation period ought be treated, or find reflection in, appropriate and just and equitable property adjustment orders. Second, is the proper assessment of each party’s contributions, within the meaning of s 79(4)(a), (b) and (c) of the Act, to the property which currently exists in the context of such a lengthy post-separation period.

Brief chronology

1. Both parties seek orders for property settlement and implicit in that is their recognition that it would be just and equitable within the meaning of s 79(2) of the Act for such orders to be made. Having regard to the parties’ existing property interests as discussed below, I am satisfied that the circumstances surrounding the parties’ separation, as also discussed below, render it just and equitable for property adjustment orders to be made in accordance with Stanford v Stanford (2012) 247 CLR 108 (at [42]).

2. Ms Straka (“the wife”) was born in Central Europe in 1963 and as at trial was 51 years of age.

3. Mr Strom (“the husband”) was born in Central Europe in 1964 and as at trial was 49 years of age.

4. The parties met in Central Europe in 1985 whilst both were attending university.

5. In about 1988 the parties commenced cohabitation in a home owned by the husband’s parents in Central Europe.  They married in 1989.

6. The marriage produced two children, K born in 1990 and M born in 1992.

7. The parties and then the children of the marriage resided in the home of the husband’s parents in Central Europe for the initial 10 years of their cohabitation, until May 1998 when they migrated to Australia.  The parties and their children have lived here ever since.

8. The parties separated under the one roof of the jointly owned former matrimonial home at H Street, Suburb P (“the former matrimonial home”) in early 2002.  However, they continued living under the one roof of the former matrimonial home for another decade until, in the course of these proceedings, in March 2012 an order for sole use of the former matrimonial home was made in favour of the wife.  As at trial the wife was continuing to reside in the jointly owned former matrimonial home.

Parties’ approach

1. For the purpose of property adjustment orders to be made under s 79 of the Act, as at the final submissions stage of the trial, both parties, via their respective counsel, advanced the proposition that just and equitable orders could be made by particular reference to the following property interests of the parties or either of them:

ASSETS
Ownership	Description	Value
Joint	H Street, Suburb P	$450,000.00
Husband	1/100th legal interest in B Street, Suburb B	$    2,400.00
Husband	1/3 interest in V Street, Suburb P	$136,666.70
Wife	In Trust Super Accumulation Fund	$  34,822.00
Husband	BUSSQ Super Accumulation Fund	$104,841.00
LIABILITY
Joint	Suncorp “X loan” – …60	($  17,000.00)
TOTAL NET (INCLUDING SUPERANNUATION):		$711,729.70

1. Neither party contended that the above list comprised an exhaustive inclusion of all property interests (including liabilities) of the parties or either of them.  To the contrary, each party actually advanced under the description of “other matters” a (differing) schedule of items (reproduced below) advanced during submissions of either existing legal or equitable interests; or notional “add-backs” of amounts a party had allegedly had the benefit of; or other liabilities said to exist.

2. Thus the wife contended that the husband also held or had received the benefit of:

   a)An equitable interest in the whole or part of the 99/100^th interest in B Street, Suburb B (in the legal ownership of the husband’s mother) worth $237,600;

   b)An amount of $48,121 distributed by the husband to himself from a refinance loan;

   c)An amount of $18,375 the husband had “removed” from a loan account in October 2011;

   d)An amount of $5,671.35 of legal fees paid from capital by the husband;

   and the wife also contended that she had some $27,888 in other liabilities, mainly comprised of credit card debts.

3. For his part the husband contended that his interest in the V Street, Suburb P property (“the V property”) ought be placed in a “separate pool” on the basis that his interest was acquired post-separation and the wife had made no relevant contribution to the acquisition of that property.  Moreover, the husband contended by reference to the schedule of other items that the wife held or had received the benefit of €26,000, being the proceeds of real property in Central Europe; and that he had a liability in the form of a judgment debt to one Dr Y in the amount of approximately $73,000; and that the parties had a joint liability for a debt to their son M in the amount of $20,000.

4. The rationale for each party, notwithstanding their respective contentions, in not seeking to include such “other matters” in the first stage or step of identification and valuation of existing property interests for division appeared to be either, or a combination of:

   a)In the case of “notional” items, recognition that such items no longer actually remain in existence; and/or

   b)The length of the post-separation period and the effect of that, in the context of myriad events that have occurred, in that period;

   such that these “other matters” could be appropriately considered or had regard to either generally in the assessment of contributions or, alternatively, as relevant to s 75(2)(o).

5. In other words, whilst neither party abandoned their respective contentions concerning these “other matters” neither party sought their inclusion in the

   
   

   so-called first step or stage of identifying and valuing property interests of the parties or either of them.  Both parties contended that just and equitable orders would be achieved with respect to the property interests listed at paragraph 11 above, albeit with regard to the “other matters” and subject to the husband’s qualification as to the exclusion of his interest in the V property.

6. The “other matters” set out in the schedule handed up during submissions are as follows:

OTHER MATTERS		Wife’s Value		Husband’s Value
H	99/100th interest in [B Street, Suburb B]		$237,600	$237,600
H	Funds disbursed to Husband from Refinance Loan, being advance distribution of proceeds of sale of [X] Property		$  48,121	$ NIL
H	Funds removed by Husband from [X] Loan …60 in October 2011		$  17,374	$ NIL (see below legal fees)
H	Husband’s legal fees		$    5,671.35	$    5,671.35
W	Transfer of [E Street, City O, Country Z]		$ NIL	$  26,000 EUR
W	Wife’s Legal fees paid to date		$ NIL	$ NIL
Total of “other matters”			$308,768	$269,271

OTHER MATTERS – LIABILITIES
W	GE Credit Card …04	$E 9,400	$E 9,400
W	Ignite Credit Card …58	$E 9,000	$E 9,000
W	Citibank Credit Card …20	$E 5,212	$E 5,212
W	ANZ Visa Credit Card …20	$E 4,276	$E 4,276
H	Judgment debt to Dr [Y]	$ NIL	$ 72,999.44
H	Husband’s Bank Accounts (…840, …740, …410, …453, …733)	$ 19,139	$ NIL
W	Wife’s Bank Accounts (…16)	$E    500.00	$ NIL
J	Debt to [M Strom]	$ NIL	$ 20,000

1. Whilst not included by the parties or either of them in the items to be adjusted as referred to above, it is necessary that these “other matters” be dealt with in circumstances where each party, respectively, contended for them to be taken into account, (or those of them contended for by that party) in determining just and equitable property orders with respect to the items both parties advanced as set out in paragraph 11 above.  In any event, irrespective of the parties’ positions, the starting point is to consider the parties’ existing legal and equitable interests in property.[2]

   [2] Stanford v Stanford (supra).

B Street, Suburb B

1. It was not in issue that this property has a total value of $240,000; nor that on or about 10 September 2007 the husband, then the sole legal owner of the property, transferred a 99/100^th legal interest to his mother, Mrs S, retaining for himself only a 1/100^th legal interest.

2. In my judgment the circumstances surrounding that transfer and what I find to be entirely unconvincing evidence by the husband surrounding this topic leads to the conclusion that this conduct by the husband was an artifice designed to disguise his beneficial ownership of this property.

3. The extent of the husband’s true beneficial entitlement in this property was in issue in the course of these proceedings.  On 9 February 2012 an order was made by (then) Federal Magistrate Purdon-Sully for the husband to provide to the wife a schedule identifying, inter alia, his property interests.  In the schedule provided by the husband, via his solicitors, in purported compliance with that order there is this entry:

[B Street, Suburb B]

(Husband concedes he holds notional interest

greater than 1 per cent)  E $50,000

(emphasis added)

1. That, in my judgment, constitutes (leaving aside the disingenuousness of it) an admission by the husband that the extent of his beneficial interest in this property was greater than the proportion that his legal ownership reflected.  In my judgment the word “notional” ought more accurately be “beneficial”.

2. The extent of the husband’s beneficial interest is difficult to assess on his evidence, not the least because of, I find, the husband’s lack of candour in terms of disclosure of his dealings with his mother and his associated attempts, as discussed below, to obfuscate and confuse. 

3. I accept the wife’s evidence that she was not even aware that the husband had transferred the legal interest referred to, to his mother, until her own solicitors undertook title searches in the course of these proceedings.  I accept her evidence that the husband did not disclose at any time “what percentage interest he says that he holds in this property” nor was a basis given for the estimated $50,000 value of his “notional” interest as contended for in the schedule referred to.

4. Assessment of this aspect of the matter requires some consideration of both the overall background to the parties’ post-separation conduct as well as the interrelationship between various dealings undertaken with respect to various real properties and a Financial Agreement entered into proximate to the husband’s transfer of his legal ownership in this property. 

5. As to the relevant background, I am satisfied that the combined effect of the following evidence supports the conclusion that the parties’ marriage broke down irretrievably in January 2002, and that it can be concluded that they separated in January 2002, albeit that the parties continued to reside under the one roof in the jointly owned matrimonial home.  That evidence includes:

   a)The contents of a Financial Agreement (discussed further below) executed on or about 14 September 2007 with the related Separation Declaration recording separation as having occurred on 16 January 2002;

   b)The wife’s nomination of January 2002 as the “date of final separation” in her Amended Initiating Application filed on 24 April 2013;

   c)The wife’s receipt of Centrelink benefits based upon her separated or sole parent status following January 2002;

   d)The wife’s applications for assessed child support subsequent to January 2002; and

   e)The wife’s taxation returns (Exhibit 4) in which she identified her status as a single person.

1. That noted, there are a range of features of this case which stand in stark contrast to final separation in January 2002.  That is, features which are highly unusual and which blur the usual line of demarcation in assessing contribution that final separation usually draws.  These features include:

   a)The fact that the parties continued to maintain a joint or shared household, living under the one roof, for a decade beyond the date of separation;

   b)Related to this, it is to be noted that the child K was only soon to turn 12 years of age; and the child M was only nine years of age; as at January 2002;

   c)Neither party took steps to terminate or finalise their financial/property relationship before the wife instituted these proceedings in 2011, almost a decade after January 2002; and

   d)Transactions such as joint borrowings; and joint guarantees to support borrowings; were entered into by both parties well after January 2002.

2. It is against that background that relevant property dealings, interwoven with the current legal ownership of B Street, Suburb B require consideration with some reference to the chronological order in which these occurred.

Real Properties

H Street, Suburb P, Queensland

1. Upon migrating to Australia in 1998 the parties used their savings to purchase outright the land at H Street, Suburb P, Queensland for $87,750.  The parties then obtained a mortgage with Suncorp Bank (account number ending 232) for $90,000 to construct the house (the former matrimonial home).  The former matrimonial home and the mortgage are in joint names.  On 8 December 2005 this initial loan was discharged.[3]

   [3] Wife’s affidavit filed on 22 July 2013 at paragraph 12 – Table.

V Street, Suburb P, Queensland

1. On 5 January 2005 the husband and his two sisters, Ms L and Ms R, purchased the property at V Street, Suburb P, Queensland as tenants in common in equal shares.  The purchase price was $420,996 and the husband deposes that he “did not contribute any of my personal funds to the purchase of this property”.[4]  The wife maintains that the husband contributed $E52,000 to the purchase price.[5]  However, I am satisfied from cross-examination of the wife, that the reconstruction of accounts undertaken by the wife’s lawyers on her behalf to support that contention is flawed.[6]  I find that the husband did not contribute that capital.

   [4] Husband’s affidavit filed on 19 July 2013 at paragraphs 212 and 217.

   [5] Wife’s Case Information document filed on 2 December 2013 at page 4 – entry dated 05.01.2005.

   [6] Transcript of Proceedings dated 20 August 2014 at pages 15 to 20.

2. At paragraphs 213 to 220 of his affidavit filed on 19 July 2013, the husband provides a breakdown of the various sums contributed to the purchase price by his mother and two sisters and an explanation of how those funds were applied. The majority of the funds were sourced from net sale proceeds of his mother’s property at Suburb N totalling $283,422.  The husband’s mother has resided in the V property since 2005 and the husband commenced to reside there after the order was made for the wife to have sole use and occupation of the former matrimonial home.

B Street, Suburb B

1. In September/October 2005 the property located at B Street, Suburb B, Queensland (“the B property”) was purchased for $290,000 (plus $15,000 in acquisition costs).  The B property was purchased in the husband’s sole name, and financed through a mortgage with Suncorp Bank (account …53) for $270,000 (“the B loan”).  The wife was guarantor for the B loan as it was secured over the jointly owned former matrimonial home.  On 5 September 2007 the husband discharged the B loan in full.

2. On 10 September 2007 the husband transferred title to a 99/100^th interest in the B property to his mother, Mrs S.  The husband’s asserted reasons for transferring his interest will be addressed below.

3. The wife maintains that the parties purchased the B property together as an investment that would benefit the children.  The husband strongly denies the wife’s assertions that they purchased the property together. He maintains that at the time of purchase the parties had been separated for nearly four years, and the wife allegedly made it clear that she did not want to be responsible for any costs associated with the property.  The husband deposes that the wife has not made any contribution “financial or otherwise”[7] to the B property (save for the wife acting as guarantor on the B loan in 2006-2007), while he contributed $35,000 of his “post-separation” income to its acquisition and made further payments from his savings between October 2005 and July 2006 to reduce the B loan.[8]

   [7] Husband’s affidavit filed on 19 July 2013 at paragraph 276.

   [8] Husband’s affidavit filed on 19 July 2013 at paragraphs 242 to 245.

4. Having seen and heard both parties give evidence; I prefer the wife’s version to that of the husband.  It is counter-intuitive to the husband’s portrayal of the “separateness” of the parties that the wife would guarantee this loan and allow it to be secured over the former matrimonial home.  The husband’s inconsistent evidence concerning the X property discussed below, resonates with this conclusion.

5. The husband maintains that his mother made various financial contributions to the B loan.  On the husband’s version, on 12 July 2006 the husband’s mother deposited $150,000 to the B loan, being proceeds from the sale of her family home located in Central Europe.[9]  The husband maintains that this property was owned in equal shares by his parents and upon his father’s passing the husband, his mother and two sisters inherited his father’s half share in equal shares.  The husband deposes that when the property sold in July 2006 for the equivalent of AUD$150,000 his mother applied the sale proceeds to the B loan but “…it was always understood that the funds belonged to my mother and that in the event she required them for her personal use, then they would be returned to her.”[10]  On the husband’s case, he relinquished his 1/8^th share in the $150,000 (then valued at approximately $18,750) “at that point” to repay his mother for the financial assistance she gave the parties in the early years of their marriage.  I do not accept that evidence. 

   [9] Husband’s affidavit filed on 19 July 2013 at paragraphs 245 to 246.

   [10] Husband’s affidavit filed on 19 July 2013 at paragraph 251.

6. On 16 August 2006 the husband withdrew $99,000 from the B loan, at the request of his mother, to financially assist his two sisters. The husband maintains the $99,000 was applied equally between his two sisters and the remaining $50,000 of his mother’s funds remained in the B loan account.[11]  Whilst I accept the accuracy as to the transactions deposed to I find that they are entirely consistent with the mother intending that her three children receive these gifts, as gifts.  That is, with the result of each child receiving about $50,000 each.

   [11] Husband’s affidavit filed on 19 July 2013 at paragraphs 255 to 258; husband’s Case Information document filed on 15 November 2013 at page 5.

7. As will be discussed further below, in September 2007 the husband refinanced the B loan and borrowed $420,000 from Suncorp Bank (account …056) in his sole name (“the refinance loan”) which was secured against the X property referred to below.  On 5 September 2007 the husband applied $208,178.08 from the refinance loan to discharge the B loan in full.[12]  The husband maintains his mother also made various other financial contributions to the B property by way of payments to the refinance loan (see table of payments at paragraph 270 of the husband’s affidavit).  However, cross-examination of the husband’s mother Mrs S established, I find, that the husband controlled his mother’s pension income and it was intermingled with his own money.  The table advanced by the husband does not include or make allowance for the expenses of or costs of living for his mother that had to be met.  This feature inflates artificially the mother’s alleged contributions to the B loan, viewed in isolation.  I note the husband has not provided bank account statements to substantiate all of the abovementioned transactions.

   [12] Husband’s affidavit filed on 19 July 2013 at paragraph 263.

8. On the wife’s version, the husband’s mother had not made any substantial contributions to the B loan (save for $50,000) prior to the husband gifting his mother 99/100^th title interest on 10 September 2007.[13]  I accept that to be so.  It is the wife’s position that the husband made the majority of the repayments on the B loan for the period 14 October 2005 to 5 September 2007.  At paragraph 628 of her affidavit filed on 22 July 2013, the wife summarises the transactions concerning the B loan for the relevant period.

   [13] Wife’s affidavit filed on 22 July 2013 at paragraph 629.

9. I am satisfied that the husband has sought to artificially inflate the extent of his mother’s contribution in this respect.  I do not accept his evidence.  His unreliability renders it impossible to know or identify by reference to his evidence the true extent of his own contribution to loans or that of his mother.  Her evidence makes it clear that she left it entirely to the husband to deal with funds.  I return to this topic later in these Reasons.

The X property

1. In August/September 2006 the parties purchased the X property.

2. The X property was purchased in the husband’s sole name for $440,000 (plus $17,000 stamp duty) and was funded by a loan in joint names with Suncorp Bank (account …260) (“the X loan”) for $350,000 secured over the former matrimonial home and the X property.  The husband deposes that he funded the shortfall of $107,000 by withdrawing $90,949.94 from the B loan on 4 September 2006 and applying $16,000 of his post-separation savings to settle the purchase.[14]  The husband maintains that the wife made no capital contribution to the purchase of the X property.

   [14] Husband’s affidavit filed on 19 July 2013 at paragraph 300.

3. Cross-examination of the husband highlighted significant inconsistencies in the husband’s evidence on this topic.  The husband’s attention was directed to paragraph 42 of the first affidavit he had filed in these proceedings on 2 December 2012.  On that version the husband had discussed the proposed purchase with the wife; she was interested in proceeding and sharing costs of ownership; and expressed the hope of profiting from an increase in value (of the property).  The husband had earlier, in his cross-examination, denied ever having such a discussion.  His trial affidavit version was, at best, incomplete by reference to his earlier affidavit and, at worst, plainly inconsistent.[15]

   [15] Transcript of Proceedings dated 20 August 2014 at pages 44 and 45.

4. What follows from the husband’s earlier version, which I find to be more likely to be true, is that, historically, the parties had discussions about joint endeavours in terms of property transactions despite the breakdown of their marriage; and contrary to the degree of “separateness” the husband seeks to portray subsequent to the breakdown of the marriage in early 2002.

5. On 10 August 2007 the husband obtained an online cash back facility on the joint X loan, which the wife says the husband obtained without her knowledge or consent.  I accept the wife’s evidence.  The wife maintains that the signature on the application form, which is allegedly her signature, is not her signature as she never signed the document.[16]  The husband prevaricated and obfuscated when cross-examined on this.  The wife deposes that she only found out about the facility during these proceedings.  I prefer and accept the wife’s evidence on this to that of the husband, which I reject.  It follows that the husband was quite prepared to forge his wife’s signature to advance his interests.

   [16] Wife’s affidavit filed on 22 July 2013 at paragraphs 249 to 252.

6. As already noted, in September 2007 the husband refinanced the B loan and borrowed $420,000 from Suncorp Bank (account …056) in his sole name (“the refinance loan”) which was secured against the X property.  On 5 September 2007 the husband applied $208,178.08 from the refinance loan to discharge the B loan (account …353) in full.[17]

   [17] Husband’s affidavit filed on 19 July 2013 at paragraph 263.

7. On 8 January 2011 the X property was sold for $425,000, with the net proceeds of sale being $412,000.  The date of settlement was 7 February 2011.  The wife alleges, and I accept, that she was unaware of the sale until her solicitors performed routine title searches at the commencement of these proceedings.[18]  From the proceeds of sale, the sum of $131,177.40 was applied to discharge the refinance loan in full.  The husband deposes that the payout figure for the X loan on settlement was $347,459.  The remaining proceeds of sale of $273,271.68 were applied to the X loan.  The husband deposes that this left a shortfall on the X loan of $74,241, which he allegedly paid.  The husband maintains that had he not met this cost, the wife would still be jointly liable for the X loan as co-borrower.  The husband allegedly reduced the loan to $700 but never paid it out.[19]  The wife disagrees with the husband’s allegations that he met the shortfall of $74,241 to pay out the X loan.  At paragraph 765 of her affidavit filed on 22 July 2013, the wife details various transactions to demonstrate where the husband sourced the monies to meet the shortfall on the X loan.

   [18] Wife’s affidavit filed on 22 July 2013 at paragraphs 743 to 744.

   [19] Husband’s affidavit filed on 19 July 2013 at paragraphs 346 to 351.

8. For reasons further outlined below it is unnecessary to determine this issue.  As will be discussed, I am satisfied that the wife made post-separation

   
   

   (post-January 2002) contributions which benefitted the husband and to the extent capital or income of the husband was applied the wife made, indirectly, contributions to that.

Husband’s dealings with Dr Y

Loans from Dr Y

1. The husband deposes that between September 2007 and February 2011 he had borrowings of $590,000 between two loans, that is, the X loan of $350,000 which was fully drawn, and the refinance loan of $420,000, which was drawn down by approximately $240,000.  The husband contends that the interest payments were over $3,000 per month and the wife made minimal financial contributions to these repayments.  The husband allegedly could not cover the outgoings on both properties solely from the rent from the X property ($1,360 per month) and his income, which led him to borrow funds from family and friends including one Dr Y.[20]

   [20] Husband’s affidavit filed on 19 July 2013 at paragraphs 313 to 320.

2. On the husband’s version, from 2007 Dr Y began advancing the husband “…small monthly amounts as the [r]efinance loan required, spread over a period of nearly 5 years.”[21]  At paragraphs 320 to 332 of his affidavit filed on 19 July 2013 the husband details the payments made by Dr Y and how the husband applied those funds.  The husband deposes that although Dr Y began advancing him funds in 2007, they did not enter into a formal loan agreement until 10 August 2009.  A copy of that loan agreement is Annexure “A” to the husband’s affidavit filed on 19 July 2013.

   [21] Husband’s affidavit filed on 19 July 2013 at paragraph 322.

3. Notably in a balance sheet filed on 2 December 2013 the husband contended that he then owed Dr Y $29,888.[22]  The husband asserts that the unsecured loan was provided because Dr Y was a very good friend of his, yet the husband has not filed any evidence from Dr Y, nor did he call him to provide any evidence to corroborate the husband’s version, save for a copy of the loan agreement dated 10 August 2009.

   [22] Joint Balance Sheet filed on 2 December 2013 item 24.

4. On 15 August 2014 a consent judgment was entered in the Magistrates Court against the husband in favour of Dr Y in the amount of $72,999.44 “inclusive of interest and legal costs to 8 August 2014” (Exhibit 6).

A Street, Suburb C, Queensland

1. In December 2007 Dr Y gifted the husband a 1/100^th interest in a property located at A Street, Suburb C, Queensland (“the C property”).[23]  The husband made no financial contribution to this property.  The husband deposes that by assisting Dr Y to locate and purchase the C property, Dr Y rewarded the husband with a 1/100^th interest in its title.[24]  The husband allegedly assisted Dr Y to purchase the property by withdrawing $65,429.38 from the refinance loan to enable Dr Y to settle the purchase as Dr Y was in surgery on the date of settlement and unable to deliver a cheque to complete the purchase.  The husband maintains that Dr Y repaid him the full amount with interest of $2,834 within a couple of days and also gifted him the 1/100^th interest in the property.  The husband deposes that he did not ask Dr Y to gift him the interest, rather he believes it was done out of appreciation for the husband’s assistance.

   [23] Husband’s affidavit filed on 19 July at paragraph 435.

   [24] Husband’s affidavit filed on 19 July 2013 at paragraph 421.

2. The husband subsequently relinquished his interest in the C property in September 2011, allegedly at the request of Dr Y.  The husband maintains that Dr Y was refinancing the C property and it was the husband’s belief that it was problematic for Dr Y’s finances to have the husband’s name on the title.  On 23 September 2011 the husband signed a transfer form which transferred his interest back to Dr Y for no consideration. The husband deposes that he did not ask Dr Y for consideration as the 1/100^th interest “had been a gift in the first place”.[25] 

   [25] Husband’s affidavit filed on 19 July 2013 at paragraph 433.

Ford motor vehicle

1. The husband alleges that on 3 October 2011 he withdrew $60,000 from the X loan and deposited the funds into his sub-account with the intention of purchasing a Ford motor vehicle supplied to him by Dr Y.[26]  On 9 October 2011 the husband states that he deposited $41,625.50 of those funds back into the X loan account as the wife opposed his application of the funds.  The remaining $18,375 was retained by the husband, allegedly to meet his living expenses.[27]  The wife denies the husband’s allegations that this conversation took place.  She further maintains that the husband has not provided an accounting of the funds he has allegedly utilised to meet his living expenses.[28]

   [26] Husband’s affidavit filed on 19 July 2013 at paragraph 352.

   [27] Husband’s affidavit filed on 19 July 2013 at paragraphs 360 to 363.

   [28] Wife’s affidavit filed on 22 July 2013 at paragraphs 835 to 838.

2. In his affidavit of 19 July 2013, the husband deposes (at paragraphs 419 to 420) that he then owed Dr Y $30,000 in relation to the Ford motor vehicle (excluding any applicable interest), which is registered in the name of Dr Y but in the possession of the husband.  The husband then maintained that legal ownership of the motor vehicle would not be transferred to the husband until that sum had been repaid.  Pursuant to item 25 of the joint balance sheet filed on 2 December 2013, the husband values the liability owing to Dr Y at $38,000, however the husband only estimates the vehicle is worth $11,900 (item 10).

Conclusion re: husband’s dealings with Dr Y

1. The husband’s dealings with Dr Y are, overall, on the husband’s own evidence, unconventional if not bizarre.  It is impossible to reconcile all of the transactions referred to in the husband’s evidence and, for example, to reconcile how an alleged debt of $38,000 as at 2 December 2013 translates to the amount the subject of a consent judgment in August 2014 of approximately $73,000.  My doubts about the reliability of the husband’s evidence in various respects extends to this claimed liability notwithstanding that it is evidenced by the consent judgment referred to (Exhibit 6).

2. However, as already noted, the husband does not seek to have this claimed liability brought to account at the first step or stage of identifying the parties’ existing property interests. 

1. Plainly the husband alone, without reference to the wife, carried out all of any relevant dealings with Dr Y over the period referred to.  There would appear to be no legitimate basis for the wife to share responsibility for any resulting liability incurred by the husband with respect to Dr Y (if such liability, in truth, exists).  So much seems to be recognised in the approach taken on behalf of the husband to include this item in the “other matters” category as compared with a contention that the liability ought be brought to account at the first step or stage. 

2. I find the husband’s evidence as to his claimed liability to Dr Y to be unconvincing.  Given my doubts in general about the reliability of the husband as a witness, the evidence of the consent judgment does not remove such doubts.

Loan from the parties’ son

1. In addition to Dr Y, the husband also deposes to borrowing approximately $20,000 from the parties’ son, M, to apply to the refinance loan.  At paragraphs 333 to 340 of his affidavit filed on 19 July 2013 the husband details the payments made by the son and how the husband applied those funds.  On the husband’s case, he asked the wife to agree to repay their son by withdrawing funds from the joint mortgage registered on the former matrimonial home but the wife “…has refused to cooperate with paying back [M’s] savings to him to date”.[29]  The $20,000 allegedly remains outstanding.  The wife maintains that the husband has opened several bank accounts in their son’s name, but the accounts are solely in the husband’s control, with the first account being opened in 2004 when M was only 12 years of age.  The wife deposes that she was not aware that the husband opened these accounts and had been using them.[30]  I accept her evidence in this respect.

   [29] Husband’s affidavit filed on 19 July 2013 at paragraph 339.

   [30] Wife’s affidavit filed on 22 July 2013 at paragraphs 13 to 16.

2. Cross-examination of the husband made it clear that the husband effectively used his son M’s account over the period of years referred to (including during his son’s minority) as if it was his own account.  I am not able to conclude on the husband’s evidence whether or not monies withdrawn from the son’s bank account actually belonged to the son or whether in fact there is a debt owing to the son.  As at trial the parties’ son was an adult and there was no evidence from him directly as to any claimed liability due to him.  There was thus no evidence that even if any such liability exists it is likely to be enforced.

Financial Agreement

1. On 14 September 2007, after the wife indicated her intention to divorce the husband, the parties signed a Financial Agreement (“FA”).  A copy of the undated FA is Annexure “KS-1” to the wife’s list of documents filed on 22 July 2013.  The FA only applies to the V property and seeks to exclude the V property from any property settlement order.  In this regard, clause l of the FA reads as follows:

   Both the husband and wife expressly agree that this agreement is in respect of two of the matrimonial assets only, namely [V Street, Suburb P] and the Honda [motor vehicle] registered number … and it relates to none of the other assets in the matrimonial pool which are neither dealt with by this agreement, or disclosed. Non disclosure in this regard is intentional.

2. It is noted that the Honda motor vehicle no longer appears to form part of the pool.

3. Clause 10.2, the operative clause of the FA with respect to the V property, is as follows:

   The wife acknowledges that she has no right, title or interest in or to the property situated at [V Street, Suburb P] and abandons any claim that she may have in relation thereto including the net proceeds of sale should the property be disposed of at some time in the future, more particularly described as Lot …, SP …, County of …, Parish of …, being the whole of the land contained in Certificate of Title …233 in respect of which the husband has a one third interest as tenant in common in equal shares with his two sisters [Ms L] and [Ms R].[31]

   [31] Financial Agreement – Annexure “KS-1” of the Annexures referred to in the affidavit of the wife filed on 22 July 2013.

4. Further, clause 10.4 of the FA specifies that, “[t]he parties acknowledge that this agreement does not deal with, nor is it is intended to deal with other assets and liabilities within the ‘matrimonial pool’ ”.[32]

   [32] Financial Agreement – Annexure “KS-1” of the Annexures referred to in the affidavit of the wife filed on 22 July 2013.

5. At the outset of the trial the wife abandoned her application for the FA to be set aside.

6. When seeking to set aside the FA, the wife maintained that she was pressured by the husband into signing the agreement.  The wife alleges that the husband “made all of the arrangements for the Financial Agreement”,[33] including organising and paying for both parties to obtain legal advice in respect of the agreement.  The wife was represented by Michael Wright of Wrightway Legal and the husband was represented by Ross Given of Given’s Legal, who appears to have prepared the FA.

   [33] Wife’s affidavit filed on 22 July 2013 at paragraph 510.

7. On the wife’s case, after telling the husband of her intention to obtain a divorce and property settlement orders, the husband became very violent and aggressive toward her.  At paragraphs 499 to 501 of her affidavit filed on 22  July 2013, the wife deposes that the husband:

   499.…told me that I would have to sign an agreement saying I would not ‘go after’ the [V] Property. He said his mother was worried because she lived there and had ‘had [sic] to do what his mother wanted’.  

   500.We argued about property. During these arguments [the husband] told me he would ‘arrange for everything’.  

   501.He told me that he would pay for it, that ‘its [sic] not cheap, around $2000’ but that he ‘needs to make Mother happy because she feels unsafe.’

   (original emphasis)

8. The wife maintained that she did not want to sign any document from the husband but the husband’s continual pressure caused her to feel “trapped”, “intimidated”, “scared” and “hopeless”.  The wife deposes:

   504.    …At the time, I was looking after the children and trying to work; I      was earning only a modest income, I had no where else to go and no friends in Australia.

   505.    All of the solicitors that I saw wanted money before they would act      for me.

   507.After about one (1) month of this I eventually gave up; I did not have the strength to continue living with [the husband] like that. I said to [the husband] something like ‘…ok, I’ll sign whatever you want, just leave me alone…’.[34]

   (original emphasis)

   [34] Wife’s affidavit filed on 22 July 2013 at paragraphs 504 to 505 and 507.

9. The wife alleges that the first time she received a copy of the FA was not until 8 December 2011.[35]  The wife further contends, and I accept, that at the time of signing the agreement, she was not aware that the husband had already transferred 99 per cent of his legal interest in the B property to his mother some three or four days before the FA was signed.[36]  The husband contends that he transferred title to his mother as he allegedly overheard the wife on the telephone stating words to the effect that she was going to trick the husband and his mother and have the FA set aside.[37]  Thus, he asserts that he was concerned that his mother’s funds in the V property and the B property were not protected by a claim from the wife to set aside the FA.[38]  However, notably, the B property was never the topic of the FA.  That is counter-intuitive to the mother having any legitimate claim or interest in the property.

   [35] Wife’s affidavit filed on 22 July 2013 at paragraph 490.

   [36] Wife’s affidavit filed on 22 July 2013 t paragraph 508.

   [37] Husband’s affidavit filed on 19 July 2013 at paragraphs 381 and 405.

   [38] Husband’s affidavit filed on 19 July 2013 at paragraph 405.

10. On the husband’s version, the wife and his mother got into an argument in 2007, which the husband witnessed, where the wife said to his mother, words to the effect of, “…I will take [the husband] to court for a property settlement and you will end up on the street.  I will claim your assets as well.  I have seen solicitors already”.[39]  The husband maintains that his mother then became very distressed and sought the return of “all the funds she had deposited”.  At paragraphs 376 to 378 of his affidavit filed on 19 July 2013 the husband deposes:

    376.In a conversation with [the wife] she told me that she was prepared to satisfy my mother’s request to ‘return’ her life savings in any way possible, however this was on the condition that no assets were sold in order to transfer funds to my mother.

    377.[The wife] told me that the [V] property could be the subject of an agreement which would protect it from a property settlement claim between [the wife] and myself, if this was ever to happen.

    378.Up to this point I had not obtained any legal advice. However I was happy to find a solution that would protect my mother’s savings without having to sell an asset.

    [39] Husband’s affidavit filed on 19 July 2013 at paragraph 366.

11. That version does not justify the husband’s transfer of the subject interest in the B property.  At its highest (leaving aside its characterisation as a gift) the mother’s contribution was $50,000; far less than the value of a 99/100^th interest.

12. In the end result as the wife did not persist in a claim for the FA to be set aside, it is unnecessary to determine that issue.  However, the above provides the background relating to other transactions.  Because the FA did not purport to deal with all of the properties of the parties, it obviously is of limited effect in that giving full force and effect to the FA would only prevent an order being made adjusting the husband’s interest in the V property and that is not an order sought by the wife.

Husband’s interest in rural land in Central Europe

1. The husband has an interest in parcels of rural land in Central Europe which he inherited from his grandmother.  The husband deposes that he holds his interest with a number of other relatives, (which forms 1/21 of the whole of the parcel of land) and cannot be divided or sold as he is a minority interest holder.[40]  The husband obtained a valuation of his interest on 12 July 2012 from the Official Government Valuer who valued his interest at €1,740.  Pursuant to Items 29 to 31 of the joint balance sheet of 2 December 2013, the husband’s interests in various parcels of land in Country Z had an agreed estimated value of $2,590.  It is unclear whether the wife agrees with the valuation contained in the joint balance sheet as the wife deposes, at paragraph 341 of her affidavit filed on 22 July 2013, “[w]hilst I have included the Government Valuation value in the [p]roperty pool table and [b]alance sheet, I do not believe this is the real market value of the land.”

   [40] Husband’s affidavit filed on 19 July 2013 at paragraph 20.

2. Reference is made to this only in passing.  It is not an item included amongst the “other matters” listed in the schedule handed up during submissions.  Obviously, only a nominal value is involved and in any event it would seem not to be in dispute that it is entirely the product of an inheritance of the husband to which the wife has made no contribution.

E Street, City O, Country Z

1. The husband seeks to have the proceeds of sale of E Street, City O, Country Z (“the O property”), allegedly retained by the wife, which the husband estimates amount to AUD$40,000[41] or €26,212,[42] be notionally added-back to the pool or taken into account under s 75(2)(o); or in the assessment of contributions.  The wife maintains she never received such sale proceeds, and thus they should not be notionally added-back to the pool or otherwise taken into account.

   [41] Joint Balance Sheet filed on 2 December 2013 – Item 16.

   [42] Husband’s affidavit filed on 19 July 2013 at paragraph 18.

2. The O property belonged to the wife’s father, Mr J, and another party in equal shares during the marriage.[43]  At paragraphs 349 to 371 of her affidavit filed on 22 July 2013 the wife explains how the O property came into her possession.  The wife deposes, when the parties came to Australia (in 1998):

   …my father’s residence was placed into my name as trustee for my father… At the time of transfer my father was ill and we did not want my brother to force him to sell the house. No money exchanged hands; I did not buy the property from my father. In Europe we are not able to place ‘as trustee’ on the title like in Australia, so the property was in my sole name. But there was what is similar to a caveat in Australia on the title, which confirmed my Father had the use of the property while he is living.[44]

   [43] Husband’s affidavit filed on 19 July 2013 at paragraph 19(a).

   [44] Wife’s affidavit filed on 22 July 2013 at paragraphs 350 to 355.

3. The wife maintains that she did not receive any income, or derive any benefits from the property while it was in her name, nor did she make any contributions to the property.  In or around 2009, the wife deposes that the property was sold as her father needed to purchase another property closer to his family due to his ill health.  The wife deposes that she gave one of her friends “…the authority to sign all documents so as to sell my father’s apartment and buy him another”.[45] She alleges that she transferred the property to a friend to make the sale process easier as apparently in Country Z, to sell a property the seller must be there, whereas, to gift the property only the person with authority for the seller could be there.[46]  Following the sale, the proceeds were allegedly applied to the purchase of another property for the wife’s father.  The wife maintains that she did not receive any money or benefits from the sale of the house.

   [45] Wife’s affidavit filed on 22 July 2013 at paragraph 360.

   [46] Wife’s affidavit filed on 22 July 2013 at paragraph 362.

4. On the husband’s version, prior to immigrating to Australia in 1998 the parties purchased the O property, which was tenanted at the time.  The husband disagrees with the wife’s allegations that the title to the O property was transferred to her “as trustee” for no consideration.  The husband deposes, “[t]he title deed to the property indicates that there was a purchase contract entered into.  The contract number is ….  This indicates consideration was paid.”[47]  I note no copy of the title deed is annexed to the husband’s affidavit to support this contention.  The husband maintains that the property was sold in 2009 without his knowledge.  He contends that despite calling for the documents, neither a copy of the sale contract nor the title of the new property has been disclosed by the wife.  The husband seeks an order that the sale proceeds, which he estimates total €26,212[48] or AUD$40,000,[49] should be added-back to the pool.  The wife maintains that this item of property should not be included in the pool.  The wife deposes that she does not have copies of the contract to purchase the property, the contract to sell the property, or the contract for the purchase of her father’s new property.[50]  Annexure “KS-8” in the wife’s list of documents filed on 22 July 2013, are copies of the Country Z title documents and her father’s bank account statements, where the sale proceeds were deposited.  The wife maintains those documents were disclosed to the husband in April 2012.  Having seen each party cross-examined I prefer the wife’s evidence on this topic.

   [47] Husband’s affidavit filed on 19 July 2013 at paragraph 19(d).

   [48] Husband’s affidavit filed on 19 July 2013 at paragraph 19(k).

   [49] Joint Balance Sheet filed on 2 December 2013 item 16.

   [50] Wife’s affidavit filed on 22 July 2013 at paragraph 368.

5. I accept the wife’s evidence that she did not actually receive any benefit from the sale of the subject property whether in the amount asserted by the husband or otherwise.

Items 8 and 9 – alleged removals of funds by husband

1. In my judgment there is insufficient evidence for a conclusion that the husband has had for his own benefit (aside from the amount of legal fees referred to in item 10) these items.  The relevant transactions in terms of real property dealings are set out above.  It is clear that there were liabilities to meet over time and whether or not there were any excesses of the kind referred to in these items, I am satisfied that they were re-applied in one way or another for the benefit of both parties in the sense of being applied to maintaining the asset/loan position from time to time or otherwise for the benefit of the family.

2. In short, in my judgment there is no legitimate basis to notionally add-back these items as notional assets to be considered.

Other matters – liabilities

1. I have already dealt with the consent judgment debt to Dr Y and the alleged debt to the parties’ son M.  I have excluded both items. 

2. On that basis whilst it may be accepted that the wife has the credit card liabilities referred to, it does not seem to me that it would be just and equitable to take account of these, but not the wife’s income, over the significant period under discussion.  That is likewise so with respect to the husband’s bank accounts. 

3. In short, whilst one or more of these liabilities may actually exist, I do not consider it is necessary to bring them to account to achieve a just and equitable outcome in terms of appropriate orders in circumstances where the parties, consistent with their separation as long ago as early 2002, then commenced to operate at least somewhat independently of each other in terms of the application of their respective incomes and the liabilities each incurred; and more significantly in the period whilst these proceedings have been on foot.

Further findings re: disputed issues – “other matters”

1. In her affidavit for trial the wife relied upon a “tracing” exercise performed by her lawyers in an effort to demonstrate that $52,841.41 was contributed by the husband towards the acquisition of the V property.[51]

   [51] See paragraphs 440 to 443 of the wife’s affidavit filed on 22 July 2013.

2. However cross-examination of the wife demonstrated that the tracing exercise performed by the wife’s lawyers on her behalf was flawed and thus did not establish that any contribution was made by the husband.[52]

   [52] Transcript of Proceedings dated 20 August 2014 at pages 15 to 25.

3. As earlier noted, whilst the wife had applied for an order for the setting aside of the FA dealing with the V property, that application was not pursued. Obviously enough, in circumstances where the FA did not deal with all property, the effect of the FA is narrow; precluding only an order under s 79 dealing specifically with the V property in terms of adjusting interests in that property.

4. Whilst it can thus be concluded that the husband did not contribute to the V property, the husband’s true beneficial interest in the B property is in a different category.

5. The husband’s evidence surrounding the B property, including in relation to his transfer of a 99/100^th legal interest in the property to his mother was, to say the least, vague, imprecise and unconvincing.

6. The evidence establishes that in July 2006 $150,000 was deposited to the loan in respect of the B property from the funds of the husband’s mother; but on 16 August 2006 the husband withdrew $99,000 from this same account at his mother’s direction and these funds were paid to the husband’s sisters.[53]

   [53] Husband’s affidavit filed on 19 July 2013 at paragraphs 245 to 258.

7. Whilst about $50,000 of this original amount remained in the account (as earlier noted consistent with the mother having made a gift to each of her three children), it is clear on the evidence that the husband’s funds and those of his mother were intermingled and were managed by the husband.  Whilst the husband advanced evidence designed to show payments from his mother’s account towards the B property, that was not accompanied by any attempt at reconciling these against payments necessary for the mother’s own living expenses.  Moreover, as already noted, the husband’s retention of the $50,000 amount would be consistent with that being a gift from his mother given the equivalent amount paid to each of his sisters.

1. Whilst the husband is the legal owner of only a 1/100^th interest in the B property, it is clear from his own evidence that he was under no legal obligation whatsoever at the time he did so, to transfer a 99/100^th interest to his mother, and that transfer has every appearance of being an artifice to minimise the husband’s exposure or true interest in the context of a potential claim to property settlement by the wife.  The transfer occurred only days before the FA was executed in the circumstances earlier discussed.  I find that transfer to be an artifice.

2. In cross-examination the husband acknowledged that he contributed to the B loan from 2005 until 5 September 2007, but he suggested that he did not know whether, as between himself and his mother, he contributed the “majority”.  His evidence on this topic was vague and, I find, deliberately so.  He acknowledged that at the time of making this transfer of the legal interest to his mother, he was transferring more than his mother was then entitled to.[54]

   [54] Transcript of Proceedings dated 20 August 2014 at pages 53 to 55.

3. Taken to correspondence dated 1 March 2012 written on his behalf by his solicitors, expressing that the husband holds a “notional” interest greater than 1 per cent and providing an estimate of the interest at $50,000, the husband confirmed providing those instructions to his solicitors in the course of his cross-examination.  However, attempts to better define with the husband in cross-examination what actual percentage in terms of a beneficial entitlement he had, were met with obfuscation by the husband.[55]  I find such obfuscation was deliberate.

   [55] Transcript of Proceedings dated 20 August 2014 at page 55.

4. In final submissions counsel for the husband acknowledged that it would not be just and equitable to the wife to both exclude the husband’s 1/3 legal interest in the V property on the basis that only his family contributed to its acquisition (and not the wife), and at the same time to take into account only a 1 per cent interest in the B property.[56]

   [56] Transcript of Proceedings dated 21 August 2014 at page 17.

5. Further, in submissions counsel for the husband reiterated that it was not open to him to submit that the V property ought be kept separate from any pool for division and at the same time for the B property or the interest of the husband in the B property to only be brought to account to the extent of $2,400.  Counsel for the husband acknowledged that the husband had conceded in evidence that he has an equitable interest in the B property greater than the legal interest of 1 per cent.[57]

   [57] Transcript of Proceedings dated 21 August 2014 at page 20.

6. However, the evidence of the husband, as reflected in the submissions made by his counsel, did not permit of any clear or readily identifiable means of determining the true extent of the husband’s equitable interest in the B property as being any less than full beneficial ownership.  Understandably because of the husband’s evidence, and the lack of precision in that evidence, counsel for the husband ultimately submitted that the Court could only “take into account” the fact that the husband had a greater than 1 per cent beneficial interest in the B property, without any further submission as to the extent of the likely interest.

7. Whilst I am satisfied from the evidence provided by the husband’s mother Mrs S that she ultimately contributed $52,603 to the acquisition of the B property, her affidavit evidence is, to say the least, cryptic at best concerning the transfer undertaken of the legal interest in the B property to her in 2007.[58]

   [58] Paragraphs 166 to 178 of affidavit of Mrs S filed on 30 October 2013.

8. What is set out in an Annexure to Mrs S’s affidavit (“MS-3”) is a schedule of mortgage payments said to have been made by the husband’s mother, does not clarify or reconcile funds used by the husband for the support of his mother.  That is, the husband’s mother confirmed in her evidence that all of her income including pension income was banked to her account and effectively under the control of the husband.  That drawings from this account were made towards the B property does not provide a complete answer as to how much in fact, in net terms, taking into account funds for his mother’s support, were actually applied.  The husband’s mother purported to give evidence in cross-examination to the effect that she did not spend any money on herself or that there were no funds at all required for her own support.  That is obviously a nonsense.[59]

   [59] Transcript of Proceedings dated 21 August 2014 at page 9.

9. Beyond conceding on his behalf that the husband has a beneficial interest in the B property that is beyond his 1 per cent legal interest, counsel for the husband did not agitate for any particular finding or range as to the husband’s true beneficial interest.

10. As already noted, the lack of precision in the husband’s evidence on this topic makes any particular conclusion about it difficult in circumstances where it was clearly within the power of the husband to provide via bank statements and the like, some more precise evidence by way of reconciliation of payments referred to.  I have earlier referred to the husband’s evidence in cross-examination to the effect that he was not even able to say whether he or his mother had provided the “majority” of payments.

11. Whilst emphasis was placed, in the husband’s case, on the feature that his

    
    

    post-separation income was applied to this property and that the wife did not make direct financial contribution to it, it is clear that the acquisition was made possible by the former matrimonial home being offered as security for the loan initially and the wife giving a guarantee with respect to that loan.  Aside from direct financial contribution, as will be discussed, in circumstances where the parties were continuing to live under the one roof and were each contributing to the support of their children, it would be artificial to conclude that there was no indirect financial contribution by the wife.

12. I accept the wife’s evidence that the B property was acquired on the basis that it was understood that both parties would benefit: in the sense of it being an acquisition that would ultimately be for the benefit of their children.  I accept the wife’s evidence that she knew nothing about the husband having transferred the legal interest in the property to his mother prior to her being asked to sign the FA. 

13. In summary, to exclude the V property from the pool for adjustment, on the basis that its acquisition was entirely funded by the husband’s family, and at the same time to take into account only the husband’s 1 per cent legal interest in the B property, would not be just and equitable to the wife.

14. Doing the best I can on the available evidence; and given my grave doubts about the credibility and reliability of the husband as a witness, I find it more likely than not that the husband’s true beneficial interest in the B property is as to the whole of that property.  On the approach that the $52,000 (approximately) contributed by his mother was in truth a gift, which appears more probable than not, the husband has a beneficial entitlement in the entire property; and that any payments from his mother’s account to this property are offset, or largely offset, by expenses of the mother met otherwise.

Assessment of contributions

1. A reading of the affidavit of the husband’s mother, Mrs S, relied upon by the husband in his case presented two choices.  First, that the wife had been the most uncaring, uncommitted and undevoted mother imaginable and a seriously flawed, self-absorbed and selfish person with a range of other personality or character flaws; or, second, that the witness herself was prone to gross exaggeration and distortion in her efforts to support her son in these proceedings.

2. Viewing the evidence as a whole and having seen and heard each of the parties and the husband’s mother give evidence under cross-examination, I find the second choice referred to as more probable.

3. In her trial affidavit the wife details (particularly at pages 30 to 34; and 66 to 70) the nature and content of not only her own, but also the husband’s, relevant contributions under s 79(4)(a), (b) and (c). I accept the wife’s evidence. In summary, I accept that each party applied themselves to work efforts and income earning and that in the case of the wife, in particular, to homemaking and parenting.

4. I found the wife to be a convincing witness.  In comparison to the husband, the wife did not seek to obfuscate in the course of her cross-examination and she made concessions where they fell to be appropriately made.  As a reading of these Reasons as a whole will reflect, I did not find the husband to be a reliable witness mainly because of his obfuscation and also his apparent inability to make concessions where, overwhelmingly on the evidence, they ought to have been made.

5. Save and except where expressly stated otherwise, I prefer the evidence of the wife to that of the husband where dispute between them exists as to issues of fact.

6. It seems to me that there is more than a little irony in the feature that the evidence in the husband’s case, including his own, and his witnesses, as to criticisms of the wife either as a mother or as a wife, reveals that it was mainly in circumstances of the mother pursuing efforts to study or to work, including at nights and weekends, that she falls to be subjected to criticism about not attending to the needs of her children and/or of the household.  I do not accept such criticisms as being fair or balanced.

7. In final submissions counsel for the husband acknowledged, appropriately in my view, that each party including the wife made significant relevant contributions and, equally appropriately in my view, counsel for the husband did not adopt or advance the criticisms referred to within the husband’s case as matters that ought be reflected and any relevant findings concerning the assessment of contribution.

8. I have earlier referred to the feature that counsel for each party addressed their final submissions by reference to items 1 to 6 of the above schedule, albeit referring to the “other matters” listed in the schedule to justify the submissions made.  As noted, the husband contended for item 3 (the V interest) being excluded or put in a separate pool on the basis that the husband acquired his interest in the property post-separation and entirely by way of gift from his family. 

9. On behalf of the husband it was contended that there ought be a 10 per cent adjustment in his favour (on the pool he contended for) by reason of the fact that for 10 years of the relationship the parties were able to be accommodated in the property of the husband’s parents.[60]

   [60] Transcript of Proceedings dated 21 August 2014 at page 22.

10. The wife sought to emphasise that she and the husband undertook work within the parents’ property by way of contribution to their accommodation over that period.  Even accepting that to be so, the fact is that neither the husband nor the wife were required to pay any rental or to meet any significant expenses of usual living costs whilst being accommodated within the home of the husband’s parents.  Moreover, K was born in 1990 and M in 1992, and it is obvious that in circumstances where both parties were pursuing study and then work, the husband’s parents must have made a significant contribution in terms of care of the children or assisting with that care, for which the husband receives credit. 

11. The evidence establishes that the parties were able to purchase the land for the former matrimonial home upon their migration to Australia in 1998, and obviously their capacity to accumulate the necessary savings to bring to Australia upon their migration is causally related to the years of occupation of the parents’ residence without having to pay rent or costs of their accommodation.

12. In my judgment the submission on behalf of the husband that there ought be an adjustment in favour of the husband in respect of the 10 year period referred to by reason of the contribution this represents on behalf of the husband by his parents, ought be accepted.

13. On the basis that counsel for the husband was contending that item 3 ought be excluded or placed in a separate pool, I infer that counsel’s submission for a 10 per cent adjustment was thus by reference to a net pool in the order of $575,000.

14. Obviously, a 10 per cent adjustment in favour of the husband would result in a disparity of 20 per cent and that represents a dollar value in terms of disparity; on the pool referred to, in the order of $115,000.

15. Counsel for the wife acknowledged, apparently by reference to this aspect of the parties’ contribution, that contributions ought be assessed at 55 per cent/45 per cent in favour of the husband.  In other words, an adjustment of 5 per cent would result in a disparity of 10 per cent, but of course this was based upon a total net pool represented by items 1 to 6 of $711,729 advanced by the wife, and thus the adjustment amount would be in the order of $70,000. 

16. Other than with respect to this adjustment by reference to the accommodation within the parents’ property; counsel for each party essentially contended that contributions during the relationship (meaning until separation in 2002) should be treated as being equal.[61] 

    [61] Submissions of counsel for the husband at Transcript of Proceedings dated 21 August 2015 at page 23 and counsel for the wife at page 39.

17. Whilst counsel for the husband initially submitted to the effect that the husband’s financial contributions post-separation outweighed those of the wife, it was ultimately conceded that there was no basis for any finding that the wife applied her post-separation earnings or income other than, in one way or another, for the benefit of the household and family; and it was acknowledged by counsel for the husband that the wife could be taken to have made significant contributions for the benefit of the children.

18. As earlier referred to, the children were only aged about 12 and nine at the time of the parties’ separation.  Much of the evidence of the parties, and indeed of the husband’s mother, seemed to be directed to some attempt at analysing in minute detail “who did what” in terms of non-financial contributions to the children and the household.

19. On all of the evidence (and I here reiterate my finding that the husband’s mother’s evidence was unconvincing by reason of its appearance of gross exaggeration in diminishing the wife’s role), that whilst the parties conducted themselves to some extent independently of the other, they were bound to the same household and bound to the needs of their children.  I am satisfied that each of them continued to apply their incomes in one form or another for the benefit of the household and children, and in the case of the husband, to the transactions earlier discussed.

20. It was submitted on behalf of the husband that he ought be given credit for the application of his post-separation earnings.  However, this is not a case where it has been demonstrated that, for example, the wife used income for her own personal purposes rather than for the benefit of the household and the children.  It is clear that both parties contributed to joint expenses of the household.  It would be artificial to view in isolation any contributions from his earnings by the husband towards particular loans or debts, without having proper regard to the underlying feature that both parties were contributing in the manner referred to.

21. Usually in a case where separation, in terms of marriage breakdown, occurred as long ago as 2002, it would be appropriate to adopt an asset-by-asset approach in assessing the contributions by the parties, because such an approach might be seen as more likely achieving a just and equitable outcome. 

22. However, that is so primarily because separation usually dictates that the parties thereafter occupy (and perhaps acquire and/or maintain) separate households or residences; and each party conducts themselves, including financially, largely independent of the other. 

23. However, in this case the parties did not physically separate and they continued to jointly maintain a common household in their former matrimonial home in the interests of their children.  Significantly, in that circumstance each party continued to provide financial and non-financial support to the children of the marriage; and to some extent, at least indirectly, to each other.

24. Moreover, the fact that neither party sought to determine their financial relationships (within the meaning of s 81 of the Act) meant that their financial relationships remained intertwined in their common ownership of the former matrimonial home, used as security to enable further financial dealings. Put another way, neither party sought to have extracted their individual capital (property) entitlement from its continued common or joint use, as at, or proximate to, the time of their marriage breakdown.

25. The Court’s task is to assess contributions (within the meaning of s 79(4)(a), (b) and (c)) at the time of assessment. It is obviously a holistic assessment that is undertaken from the outset of cohabitation until the time of assessment. In most cases the parties’ separation, in terms of marriage breakdown, provides a marker point because of the consequences of separation in terms of distinguishing between the nature and content of relevant contributions pre and post separation. One obvious example is a separation with the consequence of one parent assuming greater responsibility for the children.

26. In this case for the reasons already discussed, the separation of the parties in terms of their marriage breakdown does not provide such a marker point. 

27. The husband’s interest in the V property was gifted to him.  It would be consistent with authorities such as Kessey & Kessey (1994) FLC 92-495; Gosper & Gosper (1987) FLC 91-818 and Bonnici & Bonnici (1992) FLC 92-272 to either include the husband’s interest in that property in a “pool” for adjustment purposes but reflecting its value in the husband’s assessed contribution; or alternatively to exclude it from such a pool or to put it in a separate pool given that it is an asset contributed to solely by the husband.

28. I propose to take the approach of excluding the V property from the pool which I propose to consider for the purposes of reflecting the assessment of the parties’ contributions-based entitlements.

29. The husband’s interest in the B property, which I have found to be more probably than not a beneficial entitlement to the whole property, is in a different category.

30. Even though acquired post-separation in that it was acquired subsequent to 2002, I accept the wife’s evidence that the acquisition of this property was a joint endeavour based upon the objective, at the time, that it would ultimately be for the benefit of the parties’ children.  Its acquisition was facilitated at least in part by the security the wife provided.  Certainly, the husband is to be credited for applying his earnings to fund and maintain the property but to do so, that is credit to the husband, without regard to the wife’s contribution; or to disregard her indirect contribution already referred to would not be legitimate.  Treating the approximately $50,000 from his mother as a gift, as I have found it probably is, means the husband is to be credited with that contribution.

31. In my judgment, taking into account the findings I have expressed as to the “other matters” listed above in the schedule; and balancing the competing considerations as to an asset-by-asset or global approach; I conclude that it is most likely to achieve an appropriate assessment of the parties’ respective contributions-based entitlements if the following is adopted as the property interests to be focused upon, excluding the husband’s interest in the V property, on a global approach:

ASSETS
Ownership	Description	Value
1.Joint	H Street, Suburb P	$450,000.00
2.Husband’s legal and equitable interest	B Street, Suburb B	$240,000.00
SUBTOTAL	$690,000.00
SUPERANNUATION
3.Wife	In Trust Super Accumulation Fund	$  34,822.00
4.Husband	BUSSQ Super Accumulation Fund	$104,841.00
SUBTOTAL	$139,663.00
LIABILITY
5.Joint	Suncorp “X loan” – …60	($  17,000.00)
TOTAL NET ASSETS (INCLUDING SUPERANNUATION):		$812,663.00

1. In my judgment, focusing upon those assets referred to, it appropriately reflects the parties’ respective contribution-based entitlements to apply, in percentage terms, 60 per cent/40 per cent in favour of the husband to the above total.

2. That gives rise to a disparity of 20 per cent which in real money terms is approximately $162,000 in favour of the husband.  In my judgment that disparity is driven by the feature that the parties lived for some 10 years within the household of the husband’s parents and that is a contribution to be credited to the husband; as is the approximately $50,000 sourced to his mother for the B property.

Section 75(2) matters

1. As at trial the wife was about to commence in a new employment position in apparently secure employment with a major retailer at a gross annual salary of $74,800 plus superannuation; or the equivalent of about $1,440 gross per week plus superannuation.[62] 

   [62] Transcript of Proceedings dated 20 August 2014 at pages 7 and 8.

2. In cross-examination the husband confirmed that in the most recent work he had undertaken prior to trial (about two months beforehand), the husband was earning a “base” rate of pay (by inference leaving aside any additional allowances) of $34 per hour and was working 44 or 45 hours per week; and was thus earning (at the base rate) about $1,500 gross per week.[63]

   [63] Transcript of Proceedings dated 20 August 2014 at page 33.

3. That would indicate each party having an equivalent future earning capacity. 

4. However, it was submitted on behalf of the husband that based upon the evidence in his case he has “rather bleak employment prospects” and reference was made to a “rather guarded prognosis” the husband had received as to his capacity to return to full-time normal work duties.

5. The medical evidence relied upon by the husband was limited to the affidavit of a general medical practitioner reporting from the records of the U Medical Practice.  No medical specialist evidence was advanced. 

6. The report attached to the affidavit referred to records the husband having reported right shoulder pain experienced for “around a year” prior to an examination by a doctor at the practice on 19 September 2013.  Obviously enough, that ailment had not precluded the husband from engaging in employment over the period referred to.  The report contains the opinion as to an 18 month period (the report is dated July 2014) for that condition “to improve”.  However, it is not suggested in the report that the condition will not or is unlikely to improve.

7. The report also records the husband as complaining of left knee pain over a period of three years.  It records that an MRI report dated 16 December 2011 revealed a torn medial meniscus in the left knee.  Again, that condition had apparently not precluded the husband from engaging in employment.  As to prognosis, the report records it being recommended that the husband undergo surgery in November 2014 and the expressed prognosis is a recovery period of three to four months.  I interpolate here that whilst the husband gave oral evidence to the effect that he has been advised of potential risks in terms of achieving recovery, that is not corroborated by the medical evidence he relies upon.

8. The report also records the husband being first treated for depression on 16 July 2013 and refers to the husband consulting a psychologist for depression and anxiety.  The report records the husband taking medication for his depression.  Whilst the report recommends referral to a psychiatrist for further assessment, it is not apparent on the evidence before me that such referral or assessment has actually occurred.

9. In my judgment the medical evidence relied upon by the husband does not support the submission made on his behalf that his employment prospects are “rather bleak”; nor do the expressed prognoses in the report referred to readily fit the description of “rather guarded”.  In respect of both his shoulder and knee injuries the prognosis is for improvement and recovery respectively.  No prognosis is stated with respect to any ongoing condition of depression or anxiety.  That is so despite that being requested of the doctor in the letter provided by the husband’s solicitors attached to the affidavit referred to.

10. Whilst it may thus be concluded that the husband’s health has some general questions over it that do not attend with respect to the wife, I am not satisfied that the medical evidence relied upon supports the conclusion that the husband’s residual earning capacity is inferior to that of the wife.

11. It was initially submitted on behalf of the wife, albeit based upon the “pool” referred to contended for by the wife of approximately $711,000, that by reference to the “other matters” listed on the schedule there ought be an adjustment in favour of the wife of 25 per cent.  That is, that on the pool contended for on behalf of the wife, her 45 per cent contributions-based entitlement should be increased to an overall 70 per cent by reason of such adjustment by reference to the “other matters” referred to.

12. In the course of submissions the claimed adjustment appeared to be modified when it was pointed out that the disparity created by a 25 per cent adjustment of that pool would exceed in value the total of the “other matters” even if all of them were resolved in favour of the wife.

13. It was ultimately submitted on behalf of the wife that there ought be an outcome of 60 per cent/40 per cent apportionment of items 1 to 6 in the schedule in favour of the wife. 

14. Obviously, the approach I have taken is to exclude the V property but to include the B property. 

15. The husband has the advantage of retaining his 1/3 interest in the V property.  He also has, it seems, financial resources available to him by or via his family.  He referred, for example, to his capacity to call upon family members or relatives to lend him funds if he achieved his objective of retaining the former matrimonial home and paying out to the wife a sum in the order of $300,000 to $400,000.  That is, aside from conventional means of finance, the husband expressed confidence that he would have the support of relatives to fund a payment in that order or in some combination with bank borrowings.[64]

    [64] Transcript of Proceedings dated 20 August 2014 at page 34.

16. Inclusion of the B property at its full value is in the context of the wife acknowledging that she made no direct financial payments to the acquisition or conservation of the property, albeit that I have already made findings as to her indirect contributions, both financial and non-financial.  Moreover, inclusion of the husband’s superannuation means that the wife receives a share of all of the husband’s superannuation acquired post the breakdown of the marriage, albeit in the circumstances already discussed including the wife’s continuing contributions.

17. It is obvious that the husband has, overall, superior (to the wife) property and financial circumstances, albeit that this is partly because of the support he has historically received from his relatives, in particular his mother, which is not a product of or causally related to the marriage.

18. A 60 per cent/40 per cent outcome for assessed contributions in favour of the husband, on the pool I have focused upon for adjustment purposes, results in the husband receiving or retaining $487,597.80 and the wife, $325,065.20.

19. The husband also retains his one third interest in the V property worth $136,666.70.

20. The resulting disparity between the parties would be the husband having or retaining property (including superannuation) worth a total of $624,264.50 as compared to the wife’s position at $325,065.20, a difference of about $300,000.

21. In my judgment having regard to the relevant s 75(2) matters and having regard to that disparity as the most significant and distinguishing factor, an adjustment of 5 per cent on the pool referred to in favour of the wife is called for.

22. That would result in an overall outcome of 55 per cent/45 per cent in favour of the husband on the pool referred to, with the husband also retaining his interest in the V property.

23. A 45 per cent outcome to the wife (of $812,633) equates to $365,684.85, or $365,000 in round figures.

24. If the wife retains her superannuation at approximately $35,000 and also retains the former matrimonial home at the value of $450,000 (free of debt), she will have to make a cash payment to the husband of $120,000 to achieve her receipt/retention of $365,000.

25. It was unclear on the wife’s evidence whether she would have the capacity to borrow such a sum but it was clearly her ambition to do so if she could retain the former matrimonial home.  If the wife is unable to fund such a payment to the husband, and the husband retains the former matrimonial home as he seeks (with the debt), he would be required to pay the wife a cash adjustment of $330,000 for the wife to achieve an overall $365,000 outcome.

Just and equitable orders

1. Given that the former matrimonial home has long been the wife’s home, and she obtained exclusive use and occupation of that property following the interim order earlier referred to; and the husband has other property interests aside from the former matrimonial home; it would be just and equitable and an appropriate order for the wife to retain the former matrimonial home if she is able to so do.

2. Forty five per cent of the “pool” I have adopted of $812,663 amounts to $365,684.85 or, in round terms, about $365,000 as the wife’s entitlement.

3. If the wife retains her superannuation she will retain, in round terms, about $35,000.

4. If the wife is to thus also retain the former matrimonial home at the value of $450,000 the wife would have to fund a payment to the husband of $120,000.  That would be on the basis that the husband assumes liability for and indemnifies the wife against the Suncorp Bank X loan …60 in the amount of $17,000 given that that liability has already been taken into account in reaching the net figure of $812,663. 

5. It is unclear on the wife’s evidence whether she in fact has the capacity to borrow, presumably on the security of the former matrimonial home, a sum sufficient to be able to pay $120,000 to the husband.  However, for the reasons referred to, the wife ought be provided that opportunity in the first instance.

6. The wife should have 30 days from the date of orders to confirm that she has finance to be able to make the payment required to the husband within 60 days of the date of orders.

7. In the event that the wife is unable to raise finance and the husband wishes to retain the former matrimonial home as he has sought, it will be necessary for him to make a payment to the wife (in addition to indemnifying her with respect to the joint debt referred to) in the amount of $330,000 to meet the wife’s entitlement.

8. In the event that neither the wife in the first instance nor the husband in that event can retain the former matrimonial home and finance the alternative payments to the other, then the former matrimonial home will have to be sold with the net proceeds of sale being distributed in accordance with the percentage entitlements referred to.  That is, after sale costs and repayment of the joint Suncorp Bank loan the net proceeds (whether the property sells for more or less than the assumed value of $450,000) will need to be distributed in the proportions of 55 per cent to the husband and 45 per cent to the wife.

9. I am satisfied that orders giving effect to these conclusions are appropriate and just and equitable within the meaning of s 79.

10. For these reasons I make the orders set out at the commencement of them.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 December 2015.

Associate: 

Date: 18 December 2015