Summers & Summers
[2011] FMCAfam 356
•21 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUMMERS & SUMMERS | [2011] FMCAfam 356 |
| FAMILY LAW – Property – contest between husband and wife regarding disputed ownership of significant items of personalty – validity of debts asserted by husband as owed by he and the wife to husband’s parents businesses – assessment of items comprised in the matrimonial pool and subsequent value of the pool. |
| Family Law Act 1975 (Cth), s.79(4) |
| Applicant: | MS SUMMERS |
| Respondent: | MR SUMMERS |
| File Number: | AYC 372 of 2009 |
| Judgment of: | Henderson FM |
| Hearing dates: | 23 and 24 February 2011 |
| Date of Last Submission: | 3 March 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| Counsel for the Respondent: | Mr Hogg |
| Solicitors for the Respondent: | Belbridge Hague |
ORDERS
Within sixty (60) days of these orders the husband is to do all acts and things necessary to:
(a)Discharge the current mortgages over the property known as Property B in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“the property”);
(b)Pay to the wife the sum of $114,555.
Simultaneously upon compliance by the husband with order (1) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property.
In the event the husband fails to comply with order 1, both parties are to forthwith sign all documents and do all things necessary to effect a sale of the property by way of private treaty at a priced of $390,000 and upon completion of the sale the proceeds of that sale be applied:
(a)To pay all costs, commissions and expenses of the sale;
(b)To discharge the mortgage registered No [omitted] to [omitted] (“the mortgage”) or any other encumbrances affecting the property;
(c)The sum of $114,555 to the wife or if the property sells for more than $390,000 then 55% of the net proceeds together with the sum of $5,555 whichever amount is the greater;
(d)The balance then remaining to the husband.
For the purposes of the sale of the property and unless otherwise agreed between the parties:
(a)In the event that the sale is not affected within 2 months of listing the sale price is to be reduced to a figure nominated by the parties’ real estate agent.
(b)The selling agent shall be [W] Real Estate.
(c)The parties instruct [omitted] to act in respect of the sale.
(d)The parties will do all acts and things reasonably required by the selling agent(s) to sell the real property and act upon the recommendation of the selling agent(s) in respect of the sale of the property.
(e)In the event that a sale (evidenced by exchange of unconditional contracts) is not within 3 months of listing then the property is to be sold by public auction with the reserve set by the selling agent.
Pending the sale:
(a)The husband has the sole right to occupy the property.
(b)The husband pays as they fall due and indemnify the wife against all payments and liability pursuant to the mortgage.
(c)The husband pays as they fall due and indemnify the wife against all payments of rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.
(d)The parties hold their respective interest in the property upon trust pursuant to these orders.
(e)Neither party encumber the property without the consent in writing of the other party.
Pursuant to s.106A of the Family Law Act in the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders within 14 days of being presented with such deed, document or instrument, then a Registrar or of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
The husband to be solely liable for any moneys owing to the business known as [L] [business] or any other business owned by [F] Pty Ltd and is to indemnify the wife for any debt or costs arising out of any court proceedings relating to recovery of any moneys owed.
Paragraphs 9 – 12 (inclusive) of these Orders are binding on the trustee of the [P].
A base amount of $14,500.00 is allocated, as required by s.90MT(4) of the Family Law Act 1975, to Ms Summers (the wife) out of Mr Summers (the husband’s), (member number [omitted]) interest in the [P] (the “fund”).
In accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:
(a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)The husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband’s interest in the fund, is correspondingly reduced.
The trustee of the fund (the “trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by Clause 9 of this Order; and
(b)Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the fund.
Paragraphs 10 – 13 (inclusive) of these Orders shall have effect from the operative time and the operative time is four (4) business days after service of a certified copy of these Orders on the trustee of the fund.
The wife to cause a certified copy of these Orders to be served on the fund within seven (7) days from the date of these Orders.
After service of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994, the wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits out of the husband’s interest in the fund to a fund of the wife’s choosing [P] in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife.
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the wife.
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
(d)Insurance policies remain the sole property of the owner named therein.
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Leave is granted to the wife to relist the matter before the Court in order to vary the husband’s entitlement under the superannuation splitting order to reflect any shortfall in the wife’s entitlement from the sale proceeds.
IT IS NOTED that publication of this judgment under the pseudonym Summers & Summers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
AYC 372 of 2009
| MS SUMMERS |
Applicant
And
| MR SUMMERS |
Respondent
REASONS FOR JUDGMENT
The matter of Summers was a property and parenting matter heard in the Albury Registry on 23 and 24 February 2011 and finalised by way of submissions, with Ms Boyle of Counsel for the wife and myself at Parramatta and Mr Hogg of Counsel for the husband and the parties appearing by video-link from the Albury Registry, on 3 March 2011 at 4.30pm.
The parents have resolved the parenting issues between them. There was a degree of complication in the parenting matter as the wife;
Ms Summers has married Mr T. The husband Mr Summers has married Ms T who was the former Ms T. The current Mrs Summers [Ms T] is now pregnant with their child.
The Summers children are:
a)[X] born [in] 2002;
b)[Y] born [in] 2003; and
c)[Z] born [in] 2004.
The [T] children are:
a)[A] born [in] 2000;
b)[B] born [in] 2002; and
c)[C] born [in] 2006.
The children primarily live with their respective mothers and spend significant and substantial time with their fathers. Thus a settlement of the Summers parenting matter involved, necessarily, the resolution of the [T] parenting matter.
All parties are to be congratulated for the agreements they reached and the assistance of Ms Alexandra Wearne, Independent Children’s Lawyer in the [T] matter. Ms Wearne played a significant role is resolving both parenting matters.
Thus it is left to the Court to determine the property dispute between the former Mr and Mrs Summers.
The evidence at the hearing was:
For the Wife:
a)Amended Initiating Application filed 30 November 2009;
b)Affidavit sworn 18 February 2011;
c)Updated Financial Statement sworn 18 February 2011.
For the Husband:
a)Affidavit sworn 21 February 2011;
b)Affidavit sworn 23 February 2011;
c)
Affidavit of his father, Mr S, sworn at the [U] Court on
23 February 2011;
d)Financial Statement sworn 18 February 2011.
I also read:
a)
Family Report prepared by Ms D which was released on
30 November 2010;
b)Child Dispute memorandum dated 1 September 2009.
The following Exhibits were tendered:
a)Wife’s Exhibit 1: Australian Taxation Office portal in relation to herself;
b)Wife’s Exhibit 2: Details of the mortgage payments and withdrawals from [omitted] in respect of the former matrimonial home;
c)Wife’s Exhibit 3: Details of a second loan account secured over the former matrimonial home;
d)Wife’s Exhibit 4: Series of correspondence and requests by the wife to the husband for financial details;
e)Wife’s Exhibit 5: Part of the documents produced by the husband to the Child Support Registrar in relation to a re-assessment of child support;
f)Wife’s Exhibit 6: Valuation of furniture and effects in the former matrimonial home.
The husband, wife and Mr S were all cross examined.
Due the Court’s error Mr Summers had never been requested to file a Financial Statement and he filed such a document on 8 February 2011, some few days before the hearing.
Although the Court failed to make a direction for this document to be filed, Ms Summers’ lawyer did not ask for such a direction when the matter was before the Court on numerous occasions. Additionally
Mr Summers was represented by an experienced practitioner Mr Binnie throughout the proceedings and in those circumstances it is surprising the husband did not file a financial statement well before the hearing.
The consequence of these omissions is that the wife was under a significant difficulty at the hearing as all the husband’s evidence was filed only days before the hearing.
A significant issue in this matter is the ownership of a large number of items of personalty which in the wife’s case are valued at some $70,000 if her evidence is accepted by the Court. These items were left with the husband at separation. They include a Nissan motor vehicle, two boats; camping equipment including a camper trailer, 2 additional trailers, motor bikes, tools and equipment.
The husband’s case is that majority of the items claimed by the wife to be their items are owned by his parents or their businesses and were on loan to him and his wife and are not matrimonial assets. The matrimonial pool he says consists of the car the wife took at separation, the former matrimonial home, some contents, his 250 Yamaha bike, a now worthless seafarer boat, camper trailer and box trailer together with the parties’ superannuation.
This area of dispute together with the husband’s second claim that he and his wife owe his parents business some $41,000 for goods supplied or work done on their cars, boats, camper trailer etc. whilst in [L] is a significant issue in the case.
The combined monetary value of the items of personalty and alleged debts total over $100,000.
The wife’s case is that all the items she and the husband removed from [L] when they came to [U] in 2008 are their items. These personal items filled 2 large containers and the wife towed the sunmaid yacht behind her car. These expensive and valuable items of personalty she says were given to she and the husband by the husband’s parents and or their various businesses to compensate them for the unpaid work she and the husband carried out in the husband’s parents businesses.
Secondly the wife denies she and her husband owes any money to the husband’s parents business for goods supplied or work done.
The short chronology is this.
The husband is 31 years of age and the wife is 30 years of age.
The parties married [in] 2000. At that time they were living in [L]. The husband was employed full time in his parents business as a [omitted]. The wife was undertaking full-time study to become an [omitted].
In 2000 the parties purchased a property at Property L for $175,000. The parties accessed the first home owners grant and borrowed money from a bank.
In January 2001 the wife reduced her full-time study to part-time and obtained part-time employment as a [omitted].
In 2002 the husband was paid $20,000 for a workplace accident that occurred in 1997. That money was expended on the [L] property.
The parties’ first child, [X], was born [in] 2000. Their second, [Y], was born [in] 2003 and their youngest child, [Z], was born [in] 2004.
In 2005 the wife asserts the husband’s parents retired from operating the family business called “[L] [business]”. That is disputed by the husband. It is not an issue I need to determine.
The wife completed her degree [omitted] in 2006.
From March 2005 to November 2007 the wife asserts she was employed as a [omitted] in the businesses owned by the husband’s parents and her husband as a [omitted]. I accept the wife’s employment was not full time and was 4 days a week during school hours. The husband disagreed with this evidence; however it is clear from the evidence of his father that this was the situation.
The wife additionally asserts she and her husband were paid under award wages for their roles.
In mid 2007 the wife obtained part time employment [omitted].
In late 2007 the husband suffered a depressive mental illness episode or episodes and the parties determined they would leave [L] and move to [U]/[W].
The parties removed themselves from [L] in late 2007. At that time it is agreed that the paternal grandmother purchased a car, being a Nissan GU Patrol, for $36,000 and placed that car in the husband’s name.
The parties relocate from [L] to [U] with a selection of camping gear, tools, a seafarer boat, a sunmaid yacht, the Nissan Patrol motor vehicle and a quantity of other personalty and items.
The wife obtains full time work with [omitted] and works full time from January to April 2008.
The husband commences working as a [omitted].
The parties sell the [L] property for $450,000.
By April 2008 the wife returns to part time work and the parties purchase the property at Property B for $375,000. $265,000 was borrowed from [omitted].
The parties use funds from the sale of [L] and savings to construct a
10 Bay shed to store the multitude of vehicles, tools, camping equipment and the like that they brought from [L] to [U] with them.
The parties use savings to have a road-based driveway laid.
In November 2008 the parties use savings to construct an above ground pool and install fencing.
In June 2009 the parties borrowed $50,000 to further improve their property. They only spent $21,000 and the wife re-paid the remaining $29,000 into the loan which has operated as an advance payment of that loan.
In June 2009 the wife resigned her employment with [omitted] and commenced part time employment.
The parties separate on 17 July 2009.
At the date of separation the total mortgage debt was $273,448.
From July 2009 to October 2009 the wife paid a half share of the mortgage although she and the children were not living in the former matrimonial home.
The husband arranged with the bank to pay a reduced monthly mortgage and is paying interest on the primary mortgage. The husband ceased to pay the second loan being the $50,000 drawdown, and has used the repaid $29,000 as payment of the loan.
The wife commences to live with Mr T in rented accommodation in August 2009.
The husband commences to live with Ms T in Property B a short time later.
On 21 August 2009 the husband transfers his interest in the 2002 Nissan Patrol vehicle to his father.
In September 2009 the wife receives various letters by email stating she owes the husband’s parents’ business $7,193.
On 25 September 2009 the wife trades in the 2003 Mitsubishi Pajero for $10,500 and purchases another motor vehicle which can transport all six children when they are in her care.
On 12 October 2009 the wife receives an overdue statement and tax invoice number 12822 dated 29 July 2009 from the parents business claiming $7,193 for work performed on the Nissan Pajero in early 2007. This is the first occasion the wife says she has any knowledge of invoices for monies owed to the husband’s parents business.
By this date the husband has, without the wife’s knowledge, transported back to [L] the Stingray Corvette and Sunray boat.
In December 2009 the wife’s father dies.
In February 2010 Mr T is made redundant.
In March 2010 the wife moves with Mr T into his former matrimonial home at [omitted].
On 16 February 2010 solicitors acting for [L] [business] send correspondence to the wife’s solicitors enclosing four tax invoices. These invoices state on their face that the husband and wife owe debts to the husband’s parent’s business, for an amount totalling $41,007 for work performed together with goods supplied when they were in [L].
A Conciliation Conference was listed on 22 April 2010. This did not proceed as the husband had not filed financial material. He had not been directed to do so due an error on the order stating the applicant and not the respondent was to file same. The wife’s lawyer did not bring this error to the attention of the Court nor was the Registrar asked to make the appropriate directions.
On 21 January 2011 the wife’s solicitors write to the husband’s solicitors seeking all items in his possession be produced for valuation.
On 8 February 2010 the wife’s solicitor emails the husband’s solicitor seeking a response to the valuation proposal and requesting the husband’s credit card statements as at the date of separation.
The husband marries Ms T on 11 February 2011.
The wife marries Mr T on 13 February 2011.
Suffice to say, credit formed an important part in my decision.
Assets
The assets as asserted by the wife are as follows:
ASSETS Former matrimonial home at Property B $390,000 Trade in of the Mitsubishi Pajero $10,500 Value of the 2002 Nissan Patrol transferred by the husband to the father $32,990 Camper Trailer $14,500 Yamaha 250 motorbike, 1999 $5,500 Bike Trailer $1,690 Trailer $3,499 Seafarer boat $9,900 Tinnie and Trailer $4,200 Sunmaid Yacht $14,900 Furniture in the husband’s possession $5,000 Tools and camping gear in the husband’s possession $20,000 Wife’s superannuation benefit $10,993 Husband’s superannuation benefit $36,000
The value of the former matrimonial home is agreed by the husband.
The total mortgage on the property at the date of separation was $273,448. That figure is agreed by the husband. However, he asserts the current mortgage should be used in my calculations. That figure is $280,350.
Part of the current mortgage includes a second loan on the home at separation which had advance payments of $29,000. That advance has reduced to $17,461 as the husband has not made any payments in respect of that loan. The wife seeks the husband be responsible for the decrease in this advance payment together with the primary mortgage which she has assessed for the purposes of this hearing to be $10,100.
I will not include in the asset pool the Yamaha TTR 50 motorbike. This bike is the children’s.
The wife accepts there was a credit card debt in the husband’s name of $7,500 at the date of separation. Otherwise, the wife does not accept any increase of that debt to $11,400 when the husband paid it out some twelve months ago with, he says, a loan from his boss.
The wife has a combined HECS debt and education loan of $19,397.77.
Thus, the major task for me is to assess what is included in the matrimonial pool and what is not. I will need to deal with each item separately.
The only items as agreed are:
a)the value of the home;
b)the mortgage at separation;
c)credit card debt in the husband’s name at separation;
d)the trade in value of the Mitsubishi Pajero, although the husband asserts he could have obtained a greater trade figure he does not dispute that is what the wife received;
e)parties current superannuation;
f)the current mortgage.
The wife gave her evidence in a clear, unambiguous and forthright manner. She did not seek to embellish, justify nor explain any of her actions or conduct and merely answered questions that were put to her.
I accept she received $10,500 for the trade in of the Pajero and the claim by the husband that he could have obtained more for it is of no assistance to me. This will be the value of that asset.
The wife admitted that the Pajero had had extras added to it from the time they were living in [L] and that those extras came from the husband’s father’s business.
The wife admitted that the funds to purchase the Nissan motor vehicle came from the husband’s mother’s account and that the car was registered in her husband’s name. The wife agreed that the Patrol vehicle may well be in [L].
Much criticism was made of the wife that she did not have any documents to support her claim that she working for the husband’s parents’ business. She did not need to. She did work in that business. That is clear from Mr S’ affidavit.
The husband’s evidence to me in cross-examination when pressed on this issue was:
I didn’t know anything about that. I just worked out the back with grease on my hands.
I accept that the husband knew very little about the functioning and running of his parents’ business or what his wife did in that business. He cannot assist me to further clarify the matter. However, his father did so.
The best evidence of the wife’s role in the husband’s parents’ business comes from a letter written by Mr S to his son dated 23 March 2008 and attached to his affidavit.
In the letter, Mr S Senior says many things but, relevantly, the following:
For reasons I have explained to you, the following letter detailing the terms and conditions relating to a number of assets taken by you to [W] owned by either Mum and I or our family company [F] Pty Ltd].
This letter was addressed to the husband only and sent to the husband’s work address and not the matrimonial home. At that time the parties were still living together and had only recently moved to the [W] area. In his oral evidence and in this letter Mr S Senior, explained at great length how he had helped the wife and his son move to the area.
Mr S Senior reasons for only sending his son a copy were that “various sensitivities that remain” and that he and his wife were:
greatly distressed by Ms Summers’s threats regarding legal action relating to recovery of past wages and entitlements supposedly owed to you and cash payments to compensate you for the loss of the company car you had exclusive access to while you were working with us in the family company.
Thus it is clear that the wife’s assertions she and her husband were owed monies for unpaid wages has been an issue for the Summers’ family since shortly after the parties left [L] if not before.
The letter goes on to say that an audit review of the company accounts had:
revealed a wide range of anomalies for the period that
Ms Summers was working for us as our [omitted] in the family business…the accounts were in disarray, the end of year financial reports of no use, the company accounts structure far too complex and unworkable, and JAX had still not received a single monthly report and financial statement from her in spite of many requests.
The letter continues to talk about the consequences for the wife being serious ramifications “in terms of her membership of any of the two professional associations she must become a member of in order to progress her career”.
Mr S Senior then sets out the conditions of the loan of assets, as he calls them to his son and wife. It is clear that the wife had no idea this letter had been created or was in existence until after separation. How the wife could then be bound by these alleged terms and conditions escapes me. The wife became aware of this letter and many other documents when the parties were going through a child dispute process instigated by the husband in late 2009 early 2010.
The letter identifies the assets as a 2002 Nissan Patrol, Chevy Corvette, Sunmaid 23 Trailer Sailer, Carpentry tools and equipment, Aluminium car topper boat (tinnie), collapsible trailer, outboard engine mount and company tools and equipment which were detailed at length. I will not recite them all.
Mr S Senior gives an estimation of the value of tools in his letter at “40K”and further states in bold that:
These tools and equipment are supplied so that you can be independent in your trade, restore the Corvette and undertake engine rebuilds on behalf of our business as discussed.
The letter identifies “1 Desk top and 1 Lap top computer” as business assets.
He goes on further to say “Ms Summers did a number of contra deals and purchases with [name and company omitted]…the purchases relate to 2 refrigerators (stainless steel), 1 Miele Dishwasher, and 1 electric jug”.
He says of his son, “I hope you can build your shed as soon as possible in order to be able to carry out all the extra jobs we have discussed”.
It is fairly clear from Mr S Senior’s letter that the wife was an [omitted] in the business despite the husband’s assertions that she was only a [omitted]. Mr S Senior did not resile from that position in cross-examination although he took significant umbrage at Ms Boyle talking about the “family business”.
He clearly and firmly pointed out on many occasions it was not a family business. As I pointed out to him all Ms Boyle was doing was using the words he had used in his letter dated 23 March 2008.
The wife was a paid employee of the businesses; she kept records about wages and superannuation. This is confirmed by Mr S Senior. Thus she did not need to produce documents to confirm this situation. I accept she and her husband worked in the family business.
The wife said the Stingray Corvette had been at the parties’ home and had been transported from [L] to [U]/[W]. The wife understood and agreed that the Sunmaid Yacht was to be used not only by her and the husband’s family but also another sibling and his family.
The wife conceded it was possible that this boat was for the use of her family and her husband’s brother’s family in [U].
The Yamaha 250 motorbike was purchased by the parties with their credit card.
The wife was clear the bike trailer was the parties’. They had bought that item sometime in late October 2005 and it was not something from the husband’s parents. The wife was clear that the tinnie and flip ‘n’ easy trailer together with what I will call the box trailer were the parties’ property and not the husband’s parent’s property.
The remaining items the wife said were given to the parties in lieu of unpaid wages for her and her husband.
A valuation of the home was first requested by the wife in December 2010 and of the items of personalty on 21 January 2011. The wife sought that the items of personalty left by her at the home be made available for inspection by a valuer. They included, the Nissan car, camper trailer and accessories, camping equipment, 2 boats, tinnie and trailer, bike trailer, box trailer, tools and other identified equipment, household furniture and the motorbikes.
Apart from the home the only valuation provided is that of items in the former matrimonial home, marked Wife’s Exhibit 6. These items are tables, beds, assorted garden tools, jackaroo barbeque and the like. No trailers, camper trailers or trailers of any description, boats, motor bikes, boat engines, camping equipment or work tools form part of the items valued at the former matrimonial home.
It became clear from Wife’s Exhibit 4 - a series of correspondence starting December 2010 - that the husband failed to cooperate with the wife’s entreaties to have the items of personalty in the husband’s possession at separation valued for the hearing. He ignored the wife’s requests and the disputed items were never valued.
I accept these requests came late in the day and that the husband said he and the children were ill with whooping cough around this time. No adjournment was sought by him at the hearing to correct this problem.
None of the disputed items the parties transported from [L] to [U] are included in the valuation. Given the husband agrees the items were transported from [L] to [U] and were in his possession at separation there is no way the wife could have produced the items for inspection and valuation.
The wife has produced book value and internet values of what she says are similar or the same items, she not having had the opportunity to have them physically inspected. The wife said for example, that she looked at similar items on websites such as a box trailer for $3,499.
The wife gave specific evidence of the value added items she and the husband added to their camper trailer including solar panels.
Given that these items were in the husband’s possession, he did not make them available for inspection or provide any form of valuation for the Court other than his opinion and did not advise the wife where same could be inspected I am left with no other option but to accept the values put forward by the wife.
The husband could have obviated this difficulty by making sure the disputed items were available to be valued, have them valued himself or if as he asserts are in his father’s possession, facilitate them being valued. As to the items the husband admits are his and the wife’s he said the seafarer boat was damaged and of little value including the engine as was the 250 Yamaha bike.
I reject this evidence. It is in the husband’s interest to assert the items he has retained are of no value and that the remaining disputed items are not his and have been returned to his parents. Where the husband and not the wife had or have possession or control of the items it is incumbent upon him to provide a valuation or at the least co-operate in having same done. The husband’s failure to provide a valuation or co-operate in having same prepared results in my preferring the wife’s evidence to his.
Secondly, as the wife had no capacity to have this task carried out and only the husband did his failure to do so indicates the evidence tendered would not have been in his interests.
The wife’s income is now $56,000 per annum. She works on a part-time basis being four days a week during school hours to assist her to care for the children.
The wife and husband agreed to a sharing of their superannuation entitlements.
The husband said he obtained a loan from his employer of $11,400 to discharge his Westpac credit card debt of $11,400. This was a credit card in the husband’s name used during the marriage. The wife accepts the debt at separation was $7,500.
No documents evidencing the loan from the employer or the debt level of the card from separation to discharge was provided by the husband to the wife prior to the hearing despite a specific request for this information having been made of him.
The wife has no idea how the debt rose from $7,500 at separation to $11,400. Given the husband’s abject failure to produce any financial document to the wife on this issue despite her requests I did not permit him to tender any further documents at the hearing.
I accept that the Westpac credit debt at $7,500.
The wife agreed she entered the former matrimonial home with Mr T well after separation and took some copy invoices which had originated from the husbands parents’ business addressed variously to her, the husband and them both. She gave those invoices to her lawyers and they have been attached to her affidavit.
The husband, in significant contrast to the wife, was unable to answer questions directly, could not give a yes or no answer, and to use a vernacular expression “faffed around” at times before answering. It took him some time to answer the following question:
You’ve been aware that the property proceedings have been on foot since at least 30 November 2009 when your wife filed an amended application seeking property orders?
This was a feature of his manner of giving his evidence and answering questions.
The Court accepts there was an error in the orders issued on
3 December 2009 in that they recorded the Applicant to file a Reply and Financial Statement, when they should have recorded the respondent to file. The husband would not concede that as his wife had filed a Financial Statement he too was obliged to file a Financial Statement pursuant to the rules, this being a property matter. This inability to make a concession was also a feature of the husband’s evidence in stark contrast to the wife.
The husband would not concede there was some urgency in the valuations sought on 22 January 2011 given that the hearing was to commence shortly after in February. He said that he and the children were sick and they really could not comply with the timetable.
The husband would not concede that a large part of the dispute between he and his former wife was the value of many items they had brought with them from [L] and left in his possession at separation. He said he never knew the wife wanted those items valued.
The husband would not concede that he had dragged the chain in the property dispute. Yet it is clear he has.
The husband was disingenuous with some of his evidence. He said that his parents gave him and his wife $6,000 for the deposit on their first matrimonial home. They did. However, that money was repaid upon settlement when he and his wife received the first home owners grant.
The husband would not make the concession nor did he include the re-payment in his affidavit. Again, this did him no credit. This is a case where credit looms large. His affidavit was as misleading as it possibly could be and he sought to diminish and demean the wife’s contribution to the matrimonial assets at every opportunity.
It took the husband some time to answer the question:
You and your wife were employed at your parents’ business in [L]?
Finally he said “Yes we were”.
The husband did not agree with the wife’s evidence of her employment status as an [omitted] or the days and hours she worked. He did not agree she worked as an [omitted]. When it was put to him that that his father said she did he said:
Oh well, if that’s what he said. They never told me and we never discussed it.
I take from that that the husband knew nothing about the wife’s employment and is thus in no position to disagree or agree with her evidence. It is inconceivable to me that the husband and wife did not discuss what each did at his parents’ business, however this was his evidence.
The husband said in oral evidence that he did not know what his wife did. Faced with that statement I would be entitled to excise from his affidavit those parts which deal with him responding to what the wife said she did in his parents business. How would he know?
The husband told me that he knew nothing about this because he was a [omitted] out the back. Later he resiled and said he did know about these things when he became a manager of the business.
This evidence did the husband’s credit no good. I am not sure which parts of the husband’s evidence I am to accept.
I prefer the evidence in his father’s letter to him dated 23 March 2008, attached to Mr S Senior’s affidavit.
The husband said his wages were above award and that the wife worked out her own pay. He said as it was a family business there were no leave entitlements.
The husband said he was aware of the receipts for goods supplied and work done for the parties as attached to his father’s affidavit well before separation. The wife was not however.
The husband denied having anything to do with producing the invoices. He denied having anything to do with drafting the letter his father sent to him in 23 March 2008, despite there being contained a draft of that letter dated 15 March 2008 in the documents produced under subpoena from the Child Support Registrar. Both letters, the draft and that of 23 March 2008, are part of Wife’s Exhibit 5.
The husband agreed he sent the letters to the Child Support Agency because his father was “helping him out”. How was his father helping him out?
The answer to that question came from the husband when he said :
The lady from child support asked me for outstanding bills.
The husband was objecting to the assessment of child support which he is entitled to do. The basis of his objection in large part was his assertion that he was paying or had to pay debts relating to the marriage. From the husband’s point of view the series of receipts he sent to Child Support Agency from his fathers’ businesses proved that he and the wife owed his mother and father and their business substantial monies and that he was responsible for paying those debts for them both. Copies of these same invoices are in part attached to the wife’s affidavit and Mr S Senior’s affidavit. These are copies of the same invoices the wife found at the former matrimonial home after separation.
The tax invoices are:
a)# 13742, dated 18 March 2008, sent to the parties at their address at Property B, in the sum of $18,469 which relates to the camper trailer and the attachments and equipment for the camper trailer. There is no date for payment on the invoice.
b)# 13744, dated 19 March 2008, sent to the parties at their address at Property B, in the sum of $11,665 for a boat trailer, an outboard motor and a boat, marine carpet. There is no date for payment on the invoice.
c)#14439, dated 7 May 2009 for $3,500 sent to the wife at Property W, [W], the rental property she and Mr T rented in August 2009. The wife did not live at this address until August 2009. This was for work done on the wife’s Pajero. There is no date for payment on the invoice.
d)#12221, dated 4 March 2008 directed to the husband at Property B for $325; the date for payment on the invoice is 25/6/2009.
e)#12822, dated 29 July 2009 addressed to the wife at Property W, [W] in the sum of $7,193 in relation to additions to the Pajero. The wife did not move into Property W until August 2009.
The husband agreed that his father assisted him to get these and other documents ready for the Child Support Agency. I need not make a finding as to the drafter of the draft letter of 15 March 2008 as it is clear on the husband’s evidence that he and his father worked up his case that his child support liability should be reduced due to his obligation to re-pay debts to his parents’ business supported by these various tax invoices.
I accept the husband’s evidence that he had little to do in producing the invoices attached to the Child Support documents. It is clear from his evidence he had no idea how to create an invoice and told me the same.
The husband was not concerned that the invoices were out of numerical order when one looked at the dates upon which it is asserted in the document they were created. Nor did he have a concern that invoices 14439 dated 7 May 2009 and 12282 dated 29 July 2009 were addressed to the wife at an address she did not live in until August 2009 one month after separation.
Why has the husband’s property case become embroiled with the authenticity of these invoices?
The answer is that the husband was unhappy at the level of child support he was initially assessed to pay. If he was able to satisfy the Agency that he and the wife were liable for, and he was paying significant matrimonial debts on the wife’s behalf this would reduce his child support.
The invoices and letter of 23 March 2008 confirmed in the husband’s mind that this was indeed the case. Secondly, the letter apparently confirmed for him that many items in his possession were not he and the wife’s but his parents or their business’s assets. The documents came into the Agency’s files as part of the husband’s case to minimise, as is his right, his child support and thus of necessity have loomed large in these proceedings as well.
It is clear to me on its face that the invoice 14439 dated 7 May 2009 was an invoice created post the date appearing thereon for the reason that it was addressed to the wife at Property W, a property she did live in until August 2009. That one invoice alone throws into significant doubt the authenticity of the invoices and the veracity and truthfulness of Mr S Senior’s and the husband’s evidence. However, there is more than this one invoice which have caused me concern as to the authenticity of all the invoices relied upon by the husband in this matter. This is perhaps the most glaring.
It became clear from the wife’s evidence which was confirmed by Mr S Senior’s that the practice at the Summers business was when an invoice was issued the date of payment was the same date as the date of the invoice.
As Mr S Senior explained when an invoice is issued the date of issue and the date of payment is the same date. This is because the invoice is created before the vehicle, boat or trailer etc. is taken by the customer as once a car, boat or trailer left the premises you may have difficulty receiving payment. This is consistent with the wife’s evidence.
Of the 5 invoices relied upon by the husband only 2 have a date for payment 12221 and 12822. The remainder do not. The invoices are out of step with the usual accounting practice in the business as explained by Mr S Senior.
Invoice number 12221, dated 4 March 2008 related to costs for parts to repair the Nissan Landcruiser, a disputed item in this case. If as the husband asserted the car was never his and his wife’s but his parents’, why then is an invoice raised in their name for repairs to the car that was never theirs and is now in the husband’s parent’s possession. The husband said:
Well I had to check the costs of repairs and cars and I repair lots of cars.
The question put to the husband was:
As an employee why would you be paying for parts for a car that you say did not belong to you?
The invoice cannot be authentic or relate to an actual cost in the light of these facts.
Mr S Senior agreed that when invoices are created they are created sequentially. It is an automatic numbering system that cannot be changed. This was consistent with the wife’s evidence. Mr S Senior agreed that the wife was involved in setting up the accounting system including generating these invoices.
The address can be adjusted but not dates or invoice numbers. Invoice number 12822 dated 29 July 2009 gives a payment due date of 29 July 2009. This is consistent with the normal practice of this business.
Invoice number 12221 dated 4 March 2008 has date for payment of
26 June 2009. This is not consistent with the usual business practice.
Invoice numbers 13742, 13744, and 14439 have no date for payment. A further inconsistency.
Mr S Senior tried to explain these inconsistencies. He said these invoices may have been created by the new computer system. This was of no help to him as he agreed that the new computer system was that which the wife set up, that this system is still in use today and that the invoices created after the wife and husband left for [U] were created on the same system the wife set up.
Thus Mr S Senior’s answers and explanation of the lack of conformity to usual business practices of invoices 13742, 13742, 13744 and 14439 did his credit no good.
When it was put to Mr S Senior that invoice 14439 dated 7 May 2009 could not have been created on that date as the wife had not moved to the address at [W] and that she and the husband had not yet separated he said:
Yes she had. She separated and moved to her partner.
He then said:
Well we can change addresses on the invoice.
How would Mr Summers know the wife’s August 2009 address in May 2009? He could not as the wife did not. If he did create the invoice in May 2009 why did he not send it to the wife at that time? He either created this invoice after separation, or after she had moved following separation or at best the invoice was created in May 2009 but not sent to the wife until after she had moved.
I find this invoice was created after separation and not on the date asserted. It is clear all the invoices save perhaps 12822 have been tampered or doctored to manipulate the date to support the husband’s case in minimising his child support and to minimise the matrimonial assets.
Mr S Senior said he had no motivation to doctor the invoices. The evidence is to the contrary. The husband said it all when he said:
The lady from child support asked me for outstanding bills.
Then the husband knew he had a way to minimise his child support and in so doing was stuck with having these invoices form part of the evidence at this hearing.
The wife had no idea of the husband’s current financial position, what had happened to items of personalty that had been left by her at the former matrimonial home until some few days before the hearing.
I find that this poor state of affairs was exactly what the husband intended. It was to keep the wife in the dark for as long as possible and present to her a case she could not meet.
That this is so became apparent from Mr S Senior’s evidence. He flew from [L] to Albury and arrived at the Court as an avenging angel ready to defend his son and make sure the Court knew the appalling conduct of his former daughter-in-law, just how much the husband and wife owed him and his wife and that he expected payment. He repeatedly told me he had the paper work to prove all these debts and unpaid accounts. The paper work he had is only that which he created and nothing more.
Mr Summers senior preached, pontificated and obfuscated. I found his evidence extremely difficult to listen to, understand and to distil truth or accuracy from.
It became apparent that Mr Summers had produced documents in the form of letters and enclosures for his son to produce at the child support hearing. The enclosures in his letters post-dated the letter in which they were enclosed. It took Mr Summers senior some time to understand the problem this caused the Court.
The Certificate of Registration of the Nissan Motor Vehicle dated 21 August 2009 was enclosed in a letter to his son ostensibly dated 27 February 2009. That certificate of registration was not in existence in February 2009 yet Mr Summers senior was adamant the letter of
29 February 2009 was created written on that date.
The only rational explanation for this dichotomy is that the letter was created on a date after 21 August 2009, well after separation and not as asserted on 27 February 2009 months before separation.
Mr S Senior said “Oh well. Maybe the date on the letter was incorrect”. That flippant remark on such a glaring discrepancy did his credit little good.
Similarly the [omitted] Insurance document produced by Mr S Senior for child support purposes also post-dates the February 2009 letter enclosing it.
He agreed the wife worked in the business but he kept insisting on using the word “part-time” and would not let that rest although it was not in contest. The wife worked three to five days a week from 9am to 3pm to fit in with the care of the children. This is obvious from the evidence. It is accepted and clear. Mr S Senior obfuscated and would not answer clearly any question on the times Ms Summers worked.
He became hostile to Ms Boyle when she referred to the business as the “family business”. However, it is a family business. Mr S Senior said so in his letter to his son of 23 March 2008.
He gave the most interesting evidence concerning the letter sent to his son only ostensibly on 23 March 2008. He was asked why he sent the letter on that date he said:
I did everything possible to make the move to [W] a smooth as possible but took the prudent step to let Ms Summers and
Mr Summers know what was owned by the Company.I fail to see how this letter would have helped Ms Summers and his son settle in. Its contents if known by the wife would have had the opposite effect. This may explain why the wife had no idea of the letter or it contents until after separation. In all the circumstances I have difficulty in accepting this letter was created on the date appearing on its face.
The letter was a useful document in the husband’s eyes for child support and property matters.
It was clear Mr S Senior never asked the wife or husband for the return of any item he gave them until after separation.
Mr S Senior could not see that merely because he wrote something down, that did not make it true.
Mr S Senior said he has the seafarer boat and the motor. Yet the husband had given evidence that he had sold the engine. It then came out that there were two engines – a main engine and a smaller engine.
Mr S Senior made much ado of the fact that the husband was to take people on camping trips in the Jayco camper trailer as part of the business in [L]. There is not one skerrick of evidence to support this assertion other than the letters Mr. S Senior wrote.
What this evidence did confirm for me was the truth of the wife’s assertion that the trailer was equipped with the best of the then available camping options such as solar panels and was a valuable item.
Mr S Senior sometimes talked about what was owned by the business, what was owned by his wife, what was owned by him, and what was owned by him and his wife. After listening to Mr S Senior I was at a loss to understand who owned what. He did not know either. There was inconsistency in his oral evidence and that in his letter of 23 March 2008 on the issue of ownership of items.
What I do know is that the husband and wife were in possession of many valuable personal items which they brought from [L] to [U] and that the wife left those items with the husband at separation.
I accept Mr Hogg’s submission to me that credit was an issue in the matter. His submission that I would accept Mr S Senior’s evidence over the clear, unambiguous, readily given evidence of the wife because
Mr S Senior repeated again and again that the parties owed him money and certain items were his is rejected by me. Repetition does not make a matter true or create a fact where there is none. I do not accept Mr S Senior’s evidence unless it accords with the wife’s.
It was put to the husband that there was an extraordinary level of claims for parents to make for return of items post separation. The reply was:
I never would have thought she would try to claim my parents’ assets.
That is the very issue. Whose assets are they?
It is clear they were given to the husband and wife when they left [L].
I accept the wife’s evidence absolutely that she and the husband worked in the parent’s business, as families do, at significant underpayment, as families do. This is supported by Mr S Senior’s own letter of March 2008:
It saddens Mum and I greatly to be advised of this financial disarray as we have always desired to grant you and Ms Summers the benefits of the family business.
This is exactly that which the wife asserted. It is this that the husband and his father seek to resile from post separation in an attempt to recreate history to not only to minimise the child support the husband is to pay but to minimise the matrimonial assets available for distribution between the parties.
For Mr S Senior to talk in his letter of March 2008 about hope to be “reconciled in Christ” and that “we trust by God’s grace that things will now settle down for you” is hypocrisy exemplified.
What is extraordinary is that the husband firmly believes as does his father that these invoices assist the husband’s case. In reality it is to the contrary.
Had the husband and his father presented a case that these items were given to the husband and wife through the generosity of the husband’s parents then I would have been faced with a wife saying they were given to us in lieu of wages and a husband saying they were given to us as gifts.
The choice of accepting one or the other of these two realistic options and the consequences flowing thereon is not open to me as the husband never put his case that way.
I do not accept the case that the husband and his father have put before the Court as I prefer the evidence of the wife. That is, the disputed assets were their assets paid in lieu of wages for work carried out in the family business. Mr and Mrs S Senior were clearly willing to give them the benefits of the business at some point in time; however, the move to [U] and or the relationship break down may have changed that intention.
As to the alleged debts owed by the parties to the husband’s parents and business, after hearing the evidence of Mr S Senior and the husband I do not accept their version of events. I find the invoices they rely upon were created after separation to increase asserted matrimonial debts, that the letter of March 2008 was created after separation and that Mr S Senior and the husband set out on a course of conduct to minimise child support payable by the husband and to minimise the pool of matrimonial assets for distribution.
I not accept anything the husband says that is contrary to that which the wife puts forward. Mr S Senior’s evidence was nothing but a re-creation of history which his son readily accepted. The husband asserted the wife knew full well about all these invoices and then when he went away on holidays she and Mr T went into the home and she destroyed them. I reject that evidence.
The wife’s case that these invoices, and other documents such as letters in which it is asserted that she and the husband owe money to the husband’s parents’ businesses and/or are in possession of goods that are not theirs were created post separation and as means to minimise the matrimonial pool has been made out to my satisfaction.
Further as Mr S Senior’s letter of March 2008 was only sent to the husband at his work address and never sent to the wife it is disingenuous in the extreme to now say the wife was aware of these claims of ownership at that time. She was not and had no idea this was her in-laws position until after separation. The husband did not tell the wife of this letter. I find it was produced fro and at the child support hearing and not before.
Additionally, I accept the wife’s position that the husband is to be debited for his lack of payment of the second mortgage whilst he has been in occupation of the home. That debt has been paid by way decreasing the $29,000 re-paid pre separation. As he has been in possession of that home to the exclusion of the wife that is his responsibility and obligation.
I only accept the credit card debt which the wife said was in existence at separation of $7,500.
I find that the husband’s attitude to paying child support and his conduct in this litigation to be a significant other factor in the discretion I will exercise to divide the matrimonial property.
My first task now is to determine what is constituted in and the value of the matrimonial property to be divided between the parties.
Having now made findings as to credit I will assess the matrimonial property available for distribution.
I accept the Sunmaid Yacht was loaned to the husband and wife and that a condition of that loan was that it was to be used by the husband’s brother and his family. The wife conceded at the hearing that it was possible that this boat was on loan from her in-laws for the use of her family and the brother’s family in the [U] area.
That concession makes sense to me. This is the only item which I accept was on loan to the husband and wife and thus it will not be included in the assets available for distribution.
The assets are:
ASSETS Former matrimonial home at Property B $390,000 Trade in of the 2003 Mitsubishi Pajero $10,500 Value of the 2002 Nissan Patrol transferred by the husband to the father post separation $32,990 Camper Trailer $14,500 Yamaha 250 motorbike, 1999 $5,500 Bike Trailer $1,690 Trailer $3,499 Seafarer boat $9,900 Tinnie and Trailer $4,200 Furniture in the husband’s possession $5,000 Tools and camping gear in the husband’s possession $20,000 Wife’s superannuation benefit $10,993 Husband’s superannuation benefit $36,000 TOTAL $544,772 Total less superannuation $497,779
The liabilities are these:
LIABILITIES Mortgage home $273,000 Credit card $7,500 TOTAL $280,500
The net equity for division less superannuation is $217,279.
There is $97,189 of personalty in the husband’s possession on this pool.
The wife says whatever monies the husband receives should be reduced by $10,100 as that is the increase in the second mortgage since separation due to the husband’s non-payment of that mortgage in allowing the pre-payment of $29,000 to be used as, effectively, a payment.
I have accepted the wife’s evidence that the 2002 Nissan Patrol, bike trailer, tinnie and trailer, tools and camping gear the parties brought down from [L] to [U] were given to the parties by the husband’s parents in lieu of wages that each the husband and wife were owed from that business, they having worked for some years in the family business as described by Mr S Senior.
I accept the wife’s evidence that the Yamaha 250 bike, seafarer boat, Mitsubishi Pajero, camper trailer, box trailer were purchased by the parties.
Going now to determining the parties’ entitlement to their assets under section 79 of the Act. This is a four-stage approach.
I must determine the extent of the matrimonial property which I have done, and ascribe a value.
I have accepted the wife’s value of the items that are in the husband’s possession or were in the husband’s possession at separation namely the 2002 Nissan Patrol, the camper trailer, the Yamaha 250, the bike trailer, the box trailer, the seafarer boat, tinnie and trailer, furniture and tools.
The items which the husband asserts are in his parents’ possession or owned by their company I have valued at $58,880. Thus it was a significant issue in this case as to whether they were in fact matrimonial assets. I found they were for the reasons set out.
Had I been in the position to assess those items as gifts from the husband’s parents to the husband and wife the distribution of the property may well have been different as I would have been able to ascribe to the husband a significant percentage entitlement to those items because they were gifts from his parents. This was never asserted by the husband.
It is now a contest between the husband and wife having been given items given in lieu of wages or them being owned by the husband’s parents or their company and I have favoured the wife’s evidence on this issue.
The second stage is to ascribe to each of the parties their contribution based entitlement expressed as a percentage for their direct or indirect financial contribution, direct or indirect contributions to the acquisition and conservation of the property including the role of parent and homemaker.
Then after ascribing such percentage I must look at the factors under section 75(2) in terms of the their future needs such as the capacity of the parties to provide for themselves, care for children, the level of child support being paid and the like, and debts they may each have in their own names that only they are liable for.
I must determine whether there ought to be a further adjustment to their entitlement based upon their past contributions to take into account their future needs.
The last stage is to look back at the proposed Orders and determine whether they are just and equitable in all the circumstances.
I find the parties’ contribution based entitlement to the acquisition of the assets to have been equal. These parents worked hard and continued to work hard throughout the marriage. They cared for the children when they were not working and assisted the other to care for the children and/or attend work.
The wife obtained valuable skills during the marriage and had completed University courses and TAFE qualifications. However, she is now seized of a debt in the vicinity of $19,397 to repay for that education which is not a debt that the husband has a share in.
I do not see that there has been any difference in either party’s direct injection of cash or other goods into the marriage or their indirect energy and effort. Although the wife has likely been the primary parent and homemaker she having taken time off work while the children were born and young, the husband may well have earned significant more income during the marriage and thus their contributions are equal.
Coming now as I must do to assess whether I ought to vary the equal contribution up or down for future needs I make the following findings.
The wife has the primary care of the three children of the marriage. The father pays a low level of child support.
The wife earns a superior income to the husband even whilst working part time, four days a week. Therefore she has a greater income earning capacity to that of the husband.
The husband spends significant and substantial time with the children.
The husband’s conduct in these proceedings is a matter I have taken into account. I am concerned that throughout the proceedings the husband did not disclose to the wife his financial position by way of filing a Financial Statement. Although he was not ordered to do so he was well aware he needed to do so having regard to the experience of his solicitor and the fact that the wife had filed same.
The husband has failed to comply quickly and efficiently with requests made by the wife to have the home and items valued and would not advise the wife where those items were and her requests were ignored.
The husband has transferred assets, sold assets and disposed of assets that were in the parties’ possession at separation without advising the wife. His conduct has put significant stress on the wife and made her case more difficult to present.
I find there should be an adjustment in the wife’s favour for the above matters and that she will have the primary care of the children of the marriage and I assess that at 7.5%.
However, having regard to the wife’s superior earning capacity to that of the husband, I will allow him 2.5% as an adjustment to take account of that difference.
I find that, on the s.75 (2) factors I will adjust the property division to be 55% to the wife and 45% to the husband.
I must now look at the consequences of such an order to determine whether the orders I propose to make are just and equitable in all the circumstances.
The net equity less the superannuation entitlement is $217,279.
A 55/45 split would give the wife $119,503.45 and the husband $97,775.55.
Going now to the wife’s claim that an additional amount of $10,100, being the increase in the second mortgage since separation, come out of the husband’s share of the matrimonial property.
Prior to separation the parties obtained a second mortgage over the property for the purposes of renovations and the like. The wife drew down that mortgage but all monies were not expended and she repaid $29,000 back into that mortgage. This then permitted the husband at separation to avoid make any ongoing payments for the loan as the parties were, in reality, $29,000 in credit.
The husband was in occupation of the former matrimonial home to the exclusion of the wife and the children and he had an obligation to maintain that home and the loans. He was paying a low level of child support and the wife was required to pay rent and use her income to support the children.
The only asset the wife has in her possession of the multitude of assets the parties had at separation is the $10,500 from the trade in of the Mitsubishi Pajero. Deducting this sum from her percentage entitlement of $119,503.45 gives the wife an entitlement of $109,003.45.
I accept the wife’s argument that I ought to allow to her a further sum being an increase of 55% of the increase in the in the indebtedness of the home by the husband’s failure to pay any monies towards that second mortgage amounting to $5,555.
This increases the wife’s entitlement to $114,585 rounded up.
If the property is sold for its current value of $390,000 just taking into account discharging the current mortgage of $273,448 and not allowing for payment of agents commission, sale costs and the like the net proceeds of sale may be at best $117,000. This may be insufficient to pay to the wife what I have assessed is her entitlement.
The parties have agreed to a splitting order to enable their superannuation entitlement to be equal. That is the only fund from which I can provide the wife with the balance of monies to which I have found she is entitled upon a sale of the home.
Are the orders proposed just and equitable?
The orders effectively provide for the wife to receive all the cash and the husband no cash but items of personalty. I find the orders are just and equitable.
In this matter I did not accept the husband’s position that items left in his possession at separation were not his but his parents. Secondly he failed to provide any valuations of the contested items or valuations of his and the wife’s items in circumstances where he was the only party able to do so. He has made it as difficult as he could for the wife to present her case and it is his conduct that has resulted in my making the findings I have and the resultant decision.
The husband sought an order that I permit him to buy out the wife’s interest in the former matrimonial home.
I will give the husband the opportunity to buy out the wife’s interest in the former matrimonial home provided he is able to discharge the current mortgage and pay to her the sum of $114,585. Such sum to be paid by him within sixty (60) days of these orders.
In the event that sum is not paid by him within sixty (60) days of these orders the parties are to place the property at Property B on the market for sale. From the net proceeds of sale the sum of $114,585 or if the home sells for more than $390,000 then 55% of the net proceeds together with the sum of $5,555 whichever is the greater sum.
In the event there is a shortfall of monies I have determined are to be paid to the wife upon sale of the home the wife may relist this matter before the Court in order to vary the husband’s entitlement under the superannuation splitting order to reflect any shortfall in the wife’s entitlement from the sale proceeds.
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 21 April 2011
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