Tarancon and Mahdi

[2017] FCCA 442

FEDERAL CIRCUIT COURT OF AUSTRALIA

TARANCON & MAHDI [2017] FCCA 442

Catchwords:
FAMILY LAW – De facto property – 16 years – separate finances – respondent’s initial contribution.

Legislation:

Family Law Act 1975, ss.79, 90SF,90SM & 91RD

Cases cited:

Stanford & Stanford (2012) 247 CLR 108
Bevan & Bevan (2013) 279 FLR 1
In the marriage of Townsend (1994) 18 FamLR 505
Omacini & Omacini (2005) 191 FLR 317
Vass & Vass (2015) 53 Fam LR 373
Rosati& Rosati (1998) 23 Fam LR 288
Watson & Ling (2013) 49 Fam LR 303
Chapman & Chapman [2014] FamCAFC 91
Scott & Danton [2014] FamCAFC 203
In the marriage of Hickey (2003) 30 Fam LR 355
Norbis & Norbis (1986) 161 CLR 513
Dickons & Dickons (2012) 50 Fam LR 244
Bolger & Headon [2014] FAMCAFC 27
Hoffman & Hoffman (2014) 51 Fam LR 568

Applicant: MS TARANCON

Respondent: MR MAHDI

File Number: ADC 1296 of 2015

Judgment of: Judge Cole

Hearing dates: 23, 24 June 2016 & 13 July 2016

Date of Last Submission: 25 October 2016

Delivered at: Adelaide

Delivered on: 14 March 2017

REPRESENTATION

Counsel for the Applicant: Mr McGinn

Solicitors for the Applicant: Angela Ferdinandy

Respondent: Self-represented

ORDERS

1. That pursuant to s.91RD(1) of the Family Law Act 1975, there be a declaration that a de facto relationship existed between the applicant and the respondent.

2. That in full and final settlement of all claims that either party may have against the other now or at any time in the future for settlement of property:

   (a)The applicant do otherwise retain for her sole benefit the following property, assets and resources free from any claim by the respondent:

   (i)Her savings;

   (ii)Her investments;

   (iii)Her motor vehicle;

   (iv)Her furniture and effects;

   (v)Her real property in her possession;

   (vi)Her superannuation and work entitlements;

   (vii)Her life insurance;

   (viii)All claims for compensation and damages;

   (ix)Her choses in action; and

   (x)All other assets in her possession, custody or control.

   (b)The respondent do otherwise retain for his sole benefit the following property, assets and resources free from any claim by the applicant:

   (i)His savings;

   (ii)His investments;

   (iii)His motor vehicle;

   (iv)His furniture and effects;

   (v)All real property in his possession;

   (vi)His superannuation and work entitlements;

   (vii)His life insurance;

   (viii)All claims for compensation and damages;

   (ix)His choses in action; and

   (x)All other assets in his possession, custody or control.

3. That the respondent pay to the applicant:

   (a)the sum of FOUR HUNDRED AND EIGHTY TWO THOUSAND, SEVEN HUDNRED AND SIXTY-SIX DOLLARS AND EIGHTY-EIGHT CENTS ($482,766.88); and

   (b)one half of the setting down fee and the hearing fee paid by the applicant;

   within sixty (60) days of the date of this Order.

4. That there be liberty to apply in respect of consequential orders.

5. That the proceedings are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1296 of 2015

MS TARANCON

Applicant

And

MR MAHDI

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings are for the declaration of a de facto relationship and for property settlement.

2. The parties agreed prior to the trial commencing that there can be a declaration in respect of the de facto relationship.

3. The parties have also agreed that there can be orders that they each retain, save and except for any orders of this Court, any assets currently held by them.

4. The parties do not agree on the division of the assets currently held by them. The applicant is seeking an equal division of the asset pool and the respondent is seeking no alteration to the parties’ property interests. In the alternative, he says that if an adjustment should be made then it should be made in his favour.

The evidence

1. The applicant relies on:

   a)her Initiating Application filed on 16 April 2015;

   b)her affidavit filed on 31 May 2016;

   c)her Financial Statement filed on 31 May 2016;

   d)the affidavit of Mr R filed on 11 May 2016;

   e)the affidavit of her daughter Ms S filed on 16 May 2016; and

   f)the affidavit of Ms Ferdinandy filed on 19 May 2016.

2. The applicant, Mr R and Ms S gave evidence and were cross-examined.

3. The respondent relies on:

   a)his Response filed on 27 May 2015;

   b)his affidavit filed on 2 June 2016; and

   c)his Financial Statement filed on 20 June 2016.

4. The respondent also sought to rely on a number of supporting affidavits he had filed being:

   a)the affidavit of Ms D filed on 2 June 2016;

   b)the affidavit of Mr A filed on 2 June 2016;

   c)the affidavit of Ms M filed on 2 June 2016; and

   d)the affidavit of Ms D filed on 2 June 2016.

5. Counsel for the applicant filed a number of objections to those affidavits. After hearing submissions, the respondent elected not to proceed with that evidence.

6. The respondent also sought to call evidence from his brother. Objection was taken to that and after discussion with the respondent and counsel for the applicant, the respondent elected not to proceed with that evidence.

7. A significant number of objections are rightly taken to the affidavit of the respondent. To enable the trial to proceed in an expeditious manner, it was agreed that I would consider those objections and give such weight to those parts of the affidavit the subject of the objections, as I saw fit in my Reasons.

Chronology

1. The applicant was born on (omitted) 1956 and is aged 61 this year. The respondent was born on (omitted) 1960 and is aged 57 this year.

2. The applicant has one daughter from her previous marriage namely Ms S who will be 41 this year. The applicant has lived with her daughter post-separation however will be seeking her own accommodation.

3. The parties commenced cohabiting in (omitted) 1998.

4. In (omitted) 1999 the parties purchased a two bedroom unit in Property A as tenants-in-common in equal shares. It is agreed they contributed equally to the acquisition of the property.

5. In (omitted) 2009 they sold the Property A property and applied the proceeds of sale to purchase land at Property B in the State of South Australia and the construction of a house on the property.

6. In 2009 the respondent established the (omitted) Trust and the Property B property was placed in this structure.

7. The parties separated in September 2014.

8. On or about 29 October 2014, the respondent prepared a handwritten note whereby the applicant agreed to accept the sum of $153,500 from the (omitted) Trust (a financial structure in which some of the assets were held). The note stated that she accepted the funds:

   …being equivalent to the original share I contributed when the said trust was set up. I understand and agree that this payment is the first and final payment as a beneficiary of the (omitted) Trust and, under no circumstances, will I attempt to lay claim to any further assets, at any time in the future…[1]

   [1] Exhibit C.

9. In addition, the respondent agreed to pay the applicant a further $20,000 in respect of funds she had expended on the Property B property.

10. The applicant subsequently received approximately $170,000 from the respondent.

11. The applicant is employed as a (occupation omitted) on a contract basis by the (employer omitted).

12. The respondent lists his occupation as retired and receives an income from his investment properties and share dealings.

Common ground

1. There is no dispute that at the date of commencement of cohabitation, the respondent owned or had an interest in the following properties:

   a)Property C, NSW (subject to mortgage);

   b)Property D, NSW (subject to mortgage);

   c)Property E, NSW (subject to mortgage);

   d)Property F, NSW(subject to mortgage);

   e)Property G, NSW (subject to mortgage);

   f)Property H, NSW (subject to mortgage);

   g)Property I, NSW (subject to mortgage);

   h)Property J, NSW (subject to mortgage);

   i)Property K, WA (subject to mortgage); and

   j)Property L, Tasmania (freehold).

2. The value of the properties and the amount owing on the mortgages at that time is not known.

3. The applicant at the commencement of cohabitation had nominal assets comprising furniture and effects, jewellery, a Hyundai motor vehicle worth on her submissions approximately $10,000, savings of $7,000 and superannuation of approximately $4,103.

4. The parties agreed that the funds paid to the applicant following their separation were used to purchase the applicant’s block at Property M. They therefore agreed to bring that equity to account as the money paid to the applicant. There is some evidence of a further payment of $3,000 paid by the respondent to the applicant for allowing the respondent to deposit funds into her account.[2] However this was not addressed by the respondent in his trial affidavit[3] and not tested in any way.

   [2] Applicant’s affidavit filed on 31 May 2016, 239.

   [3] Respondent’s affidavit filed on 2 June 2016, 35.

5. I accept that the funds were applied by her to general living expenses. I therefore have not brought the additional $3,000 to account.

6. The properties referred to above that remain with the respondent are now unencumbered.

7. Some of the disputed items in the asset pool were subsequently agreed in the course of the closing submissions on 25 October 2016, including:

   a)the amount held in the (omitted) Bank Account by the respondent at 30 September 2016 of $3,248;

   b)the removal of the (omitted) Bank Account Number (omitted) of the respondent from the balance sheet as it was part of the $86,000 gift provided by the respondent to his mother;

   c)the value of the Holden (omitted) in the respondent’s possession agreed at $350;

   d)the value of the motor vehicle in the applicant’s possession agreed at $710;

   e)the value of the respondent’s camera agreed at $400;

   f)the funds repaid by the applicant’s daughter Ms S of $41,118 although it is agreed that this forms part of the $86,000 gift to the respondent’s mother and that this (being the $86,000) can be added back to the pool;

   g)the value of the furniture and chattels in the applicant’s possession of $2,885;

   h)the value of the ride on lawnmower at $2,000;

   i)the negligible value for the sewing equipment;

   j)the removal of the value of the land held by the applicant at Property M, having been brought to account in the value attributed to the monies paid by the respondent to the applicant;

   k)the removal of the lounge from the schedule;

   l)the removal of the unit in Property N which is owned by the respondent’s daughter; and

   m)the removal of the inheritance the respondent says was undisclosed but now concedes should not be brought to account.

8. The parties agree that the asset pool is now comprised of the following, with the following agreed and disputed values:

Owner	Description	DW Value	DH Value
1.	DH	Property G, NSW (agreed value $1,262,311 - respondent’s share)	$394,472.00	$394,472.00
2.	DH	Property B SA (owned by (omitted) Trust and respondent is sole beneficiary)	$260,000.00	$260,000.00
3.	DH	Property L, TAS (per valuation)	$40,000.00	$40,000.00
4.	DH	Property E, NSW	$304, 593.00	$304, 593.00
5.	DH	Property F, NSW	$326,317.00	$326,317.00
6	DH	Property J, NSW $450,000 - respondent’s share	$163,175.00	$163,175.00
7.	DH	Property H, NSW, $440,000, respondent’s share	$207,750.00	$207,750.00
8.	DH	Property I, NSW, $500,000, respondent’s share	$125,000.00	$125,000.00
9.	DW	Monies paid by respondent to applicant (used to buy land)	$170,000.00	$170,000.00
10.	DH	(omitted) Bank Account No (omitted) (respondent) as at 30 September 2016	$3,248.00	$3,248.00
11.	DH	(omitted) (respondent) Account No. (omitted)	Negligible	Negligible
12.	DH	(omitted) (respondent) Account no. (omitted) - $30,609 accounted for in Add Back	Excluded	Agreed
13.	DH	(omitted) (respondent) Client No. (omitted)	Not known	Not Included
14.	DH	(omitted) (respondent) Account No.(omitted)	Not known	Closed
15.	DH	(omitted) (respondent) Account No. (omitted)	$473.59	$473.59
16.	DH	(omitted) Bank (respondent) Account No. (omitted)	$170.92	$170.92
17.	DH	(omitted) Capital Management as at 22 April 2016	$130,445.00	$102,635.62
18.	DH	Holden (omitted)	$350.00	$350.00
19.	DH	Mercedes	$400.00	$400.00
20.	DW	Motor vehicle	$710.00	$710.00
21.	DH	Camera	$400.00	$400.00
22.	DH	Monies repaid by Ms S, $41,118 accounted for in Add Back	Excluded	Agreed
23.	DW	Jewellery, furniture and chattels (as per valuation, excluding missing ring)	$2,885.00	$2,885.00
24.	DH	Watch	Negligible	Negligible
25.	DW	Ride on lawn mower	$2,000.00	$2,000.00
27.	DW	Sewing equipment	Negligible
29.	DW	Land (Property M)	Referred to in item 9	Agreed
30.	DW	Gift from DH (DH says undisclosed)	Nil	$20,000.00
31.	DW	Lounge (Subsequently excluded)	Negligible	Agreed
32.	DW	Superannuation collected (respondent says undisclosed)	Nil	$66,000.00
33.	DW	Unit in Property N – in applicant’s daughter's name – now excluded by agreement	Nil	Excluded
34.	DW	Inheritance (respondent says is undisclosed)	Nil	$10,000.00
35.	DW	Gift (respondent says for food, electricity, rates 20.5 months)	Nil	$5,712.00
36.	DW	Gift (respondent says cash towards storage)	Nil	$100.00
37.	DW	Real Estate Commission on future sale of Property B	Not relevant	E$5,000.00
38.	DW	Bank Accounts (respondent says undisclosed)	Nil	Not known
39.	DW	Current income (respondent says undisclosed)	Not relevant	Not known
TOTAL	$2,132,389.51	$2,211,392.13
40.	DH	(omitted) Credit card	$2,146.00	$2,146.00
41.	DH	Trust loss – trading	Not relevant	$28,863.00
42.	DH	Capital gains tax paid	Not relevant	E$37,632.00
43.	DH	WA property loss	Not relevant	$10,000.00
44.	DH	Capital loss carried forward	Not relevant	$103,262.43
45.	DH	Trading losses	Not relevant	$11,226.84
46.	DH	Loss on Property B	Not relevant	E$65,837.00
TOTAL	$2,146.00	$258,967.27
Name of  Superannuation Fund	DW Value	DH Value
DW	(omitted) Super	E$9,301.67	E$9,301.67
DH	Not Known	Nil
TOTAL	$9,301.67	$9,301.67

ADD BACK
DH	Gift from respondent to his mother, Ms M (29 March 2016)	Not Known	$86,000.00 (funds paid by Ms S of approx. $41,000 part of this, at item 22 and ING account at item 12)

1. The respondent noted in his affidavit filed on 27 May 2015 the mortgages on the Property E and Property F properties which he paid off during the relationship. His evidence of his financial position at the commencement of cohabitation however, save for identifying the properties, was inadequate and he did not contest the assertion that all properties were encumbered. The extent of that liability however was unknown.

2. It is agreed the properties are now unencumbered, the mortgages having been paid off during the relationship.

3. It is also agreed that the respondent would pay half of the hearing fee and setting down fee incurred for trial.

4. On either parties’ version, the asset pool appears to be more than $2,000,000.

5. The items that remain in dispute will be addressed later in these Reasons.

Applicant

1. The applicant gave her evidence and was cross-examined.

2. I will refer in particular to her evidence in respect of the contributions to the acquisition, conservation and maintenance of the parties’ property.

3. She acknowledged the arrangement in respect of the purchase of the parties’ properties at Property A and subsequently Property B, were on the basis that they were purchased as tenants-in-common in equal shares. She understood that meant that either party could will their share to whoever they chose to.

4. She acknowledged that since separation she had been living with her daughter and had never paid rent. The amount set out on her Financial Statement for that period was as a consequence of her making enquiries about what the relevant rent would be for a house in that area.

5. She acknowledged that she signed a document when she left the Property B property referred to as the agreement. This is the document whereby she received $153,500 plus some additional funds from the respondent. I will refer to that later in these Reasons.

6. Her evidence was that she signed the document because she thought she had no choice. The respondent asked her “did I force you?” She replied “I thought inside me I had no choice”.

7. She was challenged as to why she did not purchase a house with the funds she had received. Her response was she could not find a house without asbestos in her price range near her daughter.

8. Her evidence was clear that she wished to live near her daughter in the (omitted).

9. She was cross-examined in respect of the Property N property that had been purchased in her name. There appeared to be no dispute that the property was bought for her daughter Ms S.

10. Her evidence was clear that the bank said they would not lend money pursuant to a mortgage unless the property was in her name.

11. Her daughter however was responsible for all loan repayments and all outgoings on the property. The property was eventually transferred into her daughter’s name.

12. There is no dispute on her behalf that there was a certain degree of separation of the parties’ finances. There was however evidence of non-financial contributions to the conservation and improvement of the assets.

13. The respondent challenged her in respect of her contributions to the property saying, “Did I benefit from this?” Her response was “yes you did”. He then said “I did not ask you to be involved” and she agreed he did not. Contributions therefore appeared to be acknowledged although challenged on the basis that they were unsolicited. That does not address the issue of why the respondent if he did not wish the applicant to be involved, did not stop her from contributing rather than sit back and receive an unsolicited benefit.

14. I accept the submission that she gave her evidence in a transparent, plain and straightforward way.

Respondent

1. Counsel for the applicant submits that the respondent is a person of some means with a high degree of business acumen.

2. He refers in his closing submissions to the respondent gifting $86,000 to his aged mother. He notes that the respondent’s mother has significant financial resources of her own including a property in Sydney worth $1.5million to $1.7million. She also has an interest in property owned jointly with the respondent and his brother, and receives income of $750 per week according to the respondent’s Financial Statement.

3. He further notes that:

   a)The respondent could have retained legal advice should he wish to do so having the means and the opportunity to retain solicitors;

   b)He is experienced over many years in real estate investments associated with the purchasing, sale and leasing of residential property for profit;

   c)He has obtained private tax rulings on his own behalf from the Australian Taxation Office;

   d)He is not commercially or financially naïve;

   e)He had prior to the trial been attending Court hearings over a long period of time observing proceedings in my Court and elsewhere and has cultivated a learning and familiarity with the Court and its procedures;

   f)He was aware of the need to cross-examine the applicant and specifically alluded to the issue in his trial affidavit;[4]

   g)He failed to cross-examine the applicant across nearly all topics about which there was a dispute; and

   h)Having regard to the above, his decision to conduct proceedings at trial without the benefit of legal representation was deliberate and it should be found that the consequences of doing so were clearly understood and appreciated by him.

   [4] Respondent’s affidavit filed on 2 June 2016, 35.

1. I accept the submissions of the applicant’s counsel on this issue.

2. The respondent whilst self-represented has had the benefit of receiving legal advice in respect of this matter. In cross-examination he conceded that he had been in receipt of legal advice including that of Mr Martin Robinson who had represented him for a short time in these proceedings.

3. He also had contact with legal representatives when conveyancing had been undertaken for him and subsequently when the (omitted) Trust had been established.

4. In addition, he had been sitting in my Court for some time studying other proceedings.

5. He confirmed that he had provided his mother with the gift of $86,000 in or about March 2016. That comprised the funds that he had received from Ms S, the applicant’s daughter in repayment of the loan, and funds he held in his savings account.

6. He later in his evidence advised that he gave her the $86,000 because he was concerned for her health. He was asked why he did not simply pay for her treatment. He confirmed that she did not currently need treatment and the money had been given to her in preparation for it.

7. He conceded that his mother was the sole proprietor of a property at (omitted), Sydney. The house is located on a block of approximately 800 square metres. He guessed it was worth approximately $1.5million. He conceded that his brother had not given a similar gift to his mother of $86,000.

8. He also conceded that his brother, his mother and himself had sat down and redrawn her will whereby his brother inherited his mother’s estate. When asked why, he explained that they had decided they do not want any of his mother’s inheritance involved in these proceedings.

9. The effort made by him to exclude matters from consideration in these proceedings does not reflect well on the evidence he provided to this Court.

Items in Dispute

1. Whilst the parties have managed to agree the value of most of the assets, they could not agree on a number of items.

2. Some of the items remaining in dispute appear to involve consideration of whether a sum should be added back.

3. The authorities in respect of add backs as they are commonly known, were brought into question by some commentators following the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108.

4. The majority of the Full Court in Bevan & Bevan (2013) 279 FLR 1, noted:

   We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage — and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.[5]

   [5] Bevan & Bevan (2013) 279 FLR 1, 79.

5. In considering the issue of add backs, I have also had regard to authorities such as:

   a)In the marriage of Townsend (1994) 18 Fam LR 505 when the Court considered where there has been what the Court referred to as a “premature distribution of a proportion of the matrimonial assets”[6], and

   b)Omacini & Omacini (2005) 191 FLR 317 where the Court identified three clear categories of cases that had emerged including where the parties have expended money on legal fees, and

   c)Subsequent authorities such as Vass & Vass (2015) 53 Fam LR 373 where the Court noted:

   There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93–545 — or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 — is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.[7]

   The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back“, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.[8]

   [6] In the marriage ofTownsend (1994) 18 Fam LR 505, 509.

   [7] Vass & Vass (2015) 53 Fam LR 373, 138.

   [8] Ibid, 139.

6. Turning to the items in dispute including the issue of whether some items should be added back, there is no agreement in respect of the following, namely:

   a)The amount attributed to the Spectrum Live Capital Management Account as at the 22 April 2016. This is because:

   i)The respondent’s figure is $102,635.62 while the figure provided by the applicant is $130,445. Counsel for the applicant submits that the respondent has not produced any documents (despite a request via a Notice to Produce, to do so). In the circumstances he submits it is appropriate to accept the figure set out by the respondent in his first Financial Statement. The statements tendered at trial for the account show an amount redeemed of $133,500 by the respondent on the 22 December 2014.[9] 

   [9] See exhibit J.

   ii)The respondent in his Financial Statement filed on 27 May 2015 notes the fund at $130,445 saying, “money owned by the trust, currently on loan to me. Fluctuates and is not drawn upon”. In his 2016 Financial Statement filed on 20 June 2016 he notes, “money I initially injected into the trust for it to trade with. As no trading the trust currently is loaning it back to me and I have put it in this fund.” There are no corroborating documents to provide a current balance. In any event the amount should be shown as a fixed sum on the trust balance sheet because if the trust has lent it to the respondent it will eventually have to be repaid in full. I accept the submissions of the applicant’s counsel on this issue, particularly when considering matters such as the lack of disclosure and consider it appropriate that the amount be brought to account at $130,445.

   b)The respondent seeks to have an amount of $20,000 added back into the pool being the total of a series of payments made by him to the applicant in 2009 after the parties returned from (country omitted). The applicant concedes that the payments were made. She submits however that it is not an amount which is presently available to her and is not something contemplated by the Courts when considering adding back any notional property to the pool (such as a premature distribution of property or a payment to legal fees). I accept the applicant’s submissions and would not include the sum of $20,000 as claimed by the respondent.

   c)The respondent also seeks to include an amount of $66,000 being superannuation which was collected by the applicant upon her retirement in 2011. The applicant’s evidence is that the funds were subsequently applied to the Property B property, which I note has been brought to account in item 2 of the amended balance sheet and to some extent in the payment made to the applicant which is brought to account in item 9. I do not consider it appropriate to bring it to account again and considered that to do so is more likely than not to double account for the funds applied by the applicant. Furthermore, I do not consider this to be an appropriate add back having regard to the authorities referred to above.

   d)The respondent seeks a sum of $5,712 to be brought to account being funds he gifted to the applicant he says for food, electricity and rates over a 20.5 month period. The applicant submits this was not a matter that was alluded to by the respondent in his trial affidavit and it is not an item which should be included in consideration of the parties’ assets. I accept that submission. If it is to be considered at all, it would be more appropriately brought to account when considering the financial contributions of the respondent.

   e)The respondent seeks to bring to account a gift of $100 that he says was paid towards storage for the applicant. Counsel for the applicant rightly submits that there is no evidence of this and it should be disregarded. Again, if any consideration was to be given to it, it would be more appropriately considered when considering financial contributions.

   f)The respondent seeks to bring to account $5,000 being real estate commission on the future sale of Property B. This issue was addressed by the Full Court in Rosati & Rosati (1998) 23 Fam LR 288 where the Court said that amongst other things regard should be had to the likelihood of the asset being realised in the foreseeable future. There is no evidence that the Property B property will be sold. There is no evidence of what the commission would be. I am not directed to any evidence that may assist me and therefore consider that it is not appropriate that this amount be brought to account.

   g)The respondent seeks to bring to account bank accounts which he says were not disclosed by the applicant. Counsel for the applicant submits there is no evidence about the existence of this item and the applicant was not cross-examined about the topic. I accept that submission. There is no evidence on which I can safely rely in the circumstances and I would disregard that item.

   h)The respondent seeks to bring to account in the balance sheet the current income of the applicant. I do not consider it appropriate that this be considered when considering the parties’ assets and resources and accept that it would be more appropriately considered under s.90SF of the Act.

   i)The respondent also seeks to bring to account a sum of $28,863 being trading losses made by the Trust. Counsel for the applicant submits there is no reliable evidence produced in this regard. In any event, he submits the loss is a tax loss which can be utilised and set against income in later years. This was conceded by the respondent when cross-examined. The loss is not a debt or liability to be paid and should be disregarded. I accept that submission.

   j)The respondent seeks to bring to account capital gains tax paid worth an estimate of $37,633. The applicant’s Counsel submits that there is no evidence of this and if it was paid, then it is not a liability and should be disregarded. I accept that submission.

   k)The respondent seeks to bring to account the loss made in respect of the sale of a properties in Western Australia that were sold. The amount is $10,000. The applicant’s counsel submits there is no evidence presented by the respondent to support this conclusion. The respondent did own two vacant blocks at (omitted) in Western Australia. His evidence is the development failed and he lost more money than he put into it. There is no reliable evidence to corroborate this statement. I accept the submission of the applicant’s counsel.

   l)The respondent also seeks to bring to account the capital loss carried forward that he puts at $103,262.43. Counsel for the applicant simply submits that there is no evidence to support this claim. The submission is correct. I would not bring the purported losses to account when considering the assets and resources of the parties.

   m)The respondent seeks to bring to account calculated loss on the Property B property of $65,837. I understand the loss claimed relates to the respondent’s allegation that the property was overcapitalised.  I am not directed to any evidence to suggest the Property B property will be sold. I accept the submissions of applicant’s counsel that the value of the property has otherwise been brought to account and do not consider it appropriate to factor this purported loss into my consideration of the assets and resources of the parties. Furthermore, I note the respondent’s evidence that the property is owned by the (omitted) Trust. How that loss, should it exist, would be factored into the trust accounts if it is not already sought to be brought to account in the carried forward losses, is not clear.

7. I therefore accept the submissions of the applicant’s counsel in respect of the disputed items. I note the parties’ agreement to add back the funds advanced by the respondent to his mother, and have adjusted the asset table accordingly.

ASSETS AND LIABILITIES

1. This therefore means that I find the assets and liabilities of the parties to be as follows:

Assets			H/W
1.	Property G, NSW $1,262,311 respondent’s share	$394,472.00	DH
2.	Property B, SA (owned by (omitted) Trust and respondent is sole beneficiary)	$260,000.00	DH
3.	Property L, TAS (per valuation)	$40,000.00	DH
4.	Property E, NSW	$304, 593.00	DH
5.	Property F, NSW	$326,317.00	DH
6.	Property J, NSW $450,000, respondent’s share	$163,175.00	DH
7.	Property H, NSW, $440,000, respondent’s share	$207,750.00	DH
8.	Property I, NSW, $500,000, respondent’s share	$125,000.00	DH
9.	Monies paid by the respondent to applicant (used to buy land)	$170,000.00	DW
10.	(omitted) Bank Account No (omitted) (respondent) as at 30 September 2016	$3,248.00	DH
11.	(omitted) (respondent) Account No. (omitted)	Negligible
12.	(omitted) respondent account (omitted) Brought to account, part of $86,000 add back	Excluded
13.	(omitted) (respondent) Client No. (omitted)	Excluded
14.	(omitted) (respondent) Account No. (omitted)	Excluded
15.	(omitted) (respondent) Account No. (omitted)	$473.59	DH
16.	(omitted) Bank (respondent) Account No. (omitted)	$170.92	DH
17.	(omitted) Capital Management as at 22 April 2016	$130,445.00	DH
18.	Holden (omitted)	$350.00	DH
19.	Mercedes	$400.00	DH
20.	Motor vehicle in applicant’s possession	$710.00	DW
21.	Camera	$400.00	DH
22.	Monies repaid by Ms S $41,118, (brought to account as part of $86,000 add back)	Excluded
23.	Jewellery, furniture and chattels	$2,885.00	DW
24.	Watch	Negligible
25.	Ride on mower	$2,000.00	DW
27.	Sewing equipment	Negligible
29.	Value of land at Property M (brought to account at item 9)	Excluded
30.	$20,000 gift from respondent	Excluded
31.	Lounge	Excluded
32.	Superannuation collected by applicant $66,000	Excluded
33.	Unit in Property N	Excluded
34.	Inheritance	Excluded
35.	Gift (respondent says for food, electricity, rates 20.5 months)	Excluded
36.	Gift (respondent cash towards storage)	Excluded
37.	Real estate commission on future sale of Property B	Excluded
38.	Bank accounts (respondent says are undisclosed)	Excluded
39.	Current Income of applicant	Excluded
Respondent payment of funds to his mother, added back by agreement	$86,000	DH
SUBTOTAL	$2,218,389.51
Liabilities
40.	(omitted) Credit Card	$2,146.00	DH
41.	Trust Loss - trading	Excluded
42.	Capital Gains tax paid	Excluded
43.	WA Property loss	Excluded
44.	Capital loss carried forward	Excluded
45.	Trading losses	Excluded
46.	Loss on Property B	Excluded
Subtotal	$2,146.00
TOTAL	$2,216,243.51
Superannuation
Applicant's (omitted) Superannuation	$9,301.67	DW
Respondent	None
Total Superannuation	$9,301.67
TOTAL ASSETS & RESOURCES	$2,225,545.18

Is it just and equitable to make an order?

1. Section 90SM of the Act concerns the alteration of property interests. It states that:

   (1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:

   (a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property; or

2. Section 90SM(3) of the Act states that:

   (3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. The High Court recently had cause to revisit the provisions of Part VIII of the Act and in particular the operation of s.79 of the Act, in respect of the division of the matrimonial assets in the matter of Stanford & Stanford (2012) 247 CLR 108.

4. The majority of the Court stated:

   In every case in which a property settlement order under s.79 is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make the order;[10]

   …it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to the ordinary common law and equitable principles, the existing legal and equable interests of the parties in the property;[11]

   Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is just and equitable to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist;[12]

   …whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in the marital property which is fixed by reference to the various matters set out s.79(4);[13] and

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.[14]

   [10] Stanford & Stanford (2012) 247 CLR 108, 35.

   [11] Ibid, 37.

   [12] Ibid, 39.

   [13] Ibid, 40.

   [14] Ibid, 42.

5. The matter was further examined in the number of cases including Watson & Ling (2013) 49 Fam LR 303, a decision of Murphy J in respect of matters concerning parties to a de facto relationship and it was concluded that the considerations referred to by the High Court apply equally in these matters.

6. An extensive decision of the topic is set out in Chapman & Chapman [2014] FamCAFC 91 and subsequently Scott & Danton [2014] FamCAFC 203, particularly on the issue of whether the factors set out in s.79(4) of the Act or in this case s.90SM(4) of the Act “can inform” the decision to be reached under s.79(2) of the Act (in this case s.90SM(3) of the Act).

7. The respondent’s position is that taking into account the assets and resources of the parties, the current ownership of the assets by the parties and the history of this matter including the manner in which the parties ran their financial affairs whilst in a relationship, it would not be just and equitable to proceed to alter the interests of the parties in those assets pursuant to the provisions of the Act.

8. He also submits the parties entered into an agreement which was complied with in that funds were paid to the applicant and the Property B property was transferred to the respondent.

1. I am however conscious of the fact that this is a lengthy de facto relationship of 16 years in which the parties had lived across two States.

2. There is no evidence to suggest that the parties were not in a committed relationship. Whilst financial affairs may have been to some degree kept separate, I accept that they continued to work and live together as a couple, assisting each other from time to time in their various endeavours.

3. The parties engaged in two obvious joint endeavours being the Property A and subsequently the Property B property. I accept that post separation there has been a change in the use of that property and the assumptions about the use of that property, especially once the parties were no longer working, and I note amongst other things the applicant’s evidence of the promise of a life tenancy in the Property B property[15] and the promise to support her when she was no longer working.[16]

   [15] Applicant’s affidavit filed on 31 May 2016, 216.

   [16] Ibid, 226.

4. At the conclusion of the relationship the applicant had assets of approximately $172,585 with superannuation of $9,307 while the respondent had assets worth approximately $2million.

5. The respondent entered into the relationship with a significant portfolio of assets whereas those held by the applicant were nominal.

6. I accept that the applicant assisted the respondent from time to time in respect of his work on his assets as the respondent assisted the applicant with her endeavours such as (business omitted).

7. I note that the purported agreement of the parties was not formalised. I also note my previous comment that I do not consider the respondent to be commercially or financially naive. The option to formalise and conclude the agreement was available to him should he so wish.

8. In addition, I note the submissions of the applicant’s counsel that:

   a)The agreement is not about property settlement but rather an agreement in respect of the (omitted) Trust;

   b)The agreement was made shortly after separation and was made without the advantage or assistance of legal advice for the applicant;

   c)The agreement was made at a time when the applicant was without accommodation and there was uncertainty about her future employment;

   d)The agreement does not meet the required formalities of the Act; and

   e)The evidence suggests the agreement was made hastily and there is no evidence of full disclosure being made between the parties at the time.

9. The assets and liabilities of the parties have been identified. Findings have been made in respect of those matters in dispute.

10. The parties have save for issues in respect of the management of their financial affairs, worked and lived together as a couple for 16 years.

11. Counsel for the applicant submits that having regard to inter alia the duration of the relationship, the melding of the parties’ lives, the manner in which they undertook their respective roles, and the nature and extent of their contributions and their circumstances following separation, an order for property settlement should be made. I accept that submission.

12. Having regard to the matters set out above, I accept the submissions of the applicant’s counsel and am of the view that it would be just and equitable to consider the application to alter the parties’ interests in the property.

Consideration of the parties’ claims

1. In determining what orders should be made for the division of the assets, I shall take an approach similar to that set out in In the marriage of Hickey (2003) 30 Fam LR 355 that involves four inter-related steps, namely to:

   a)identify and value the property, liabilities and financial resources of the parties at the date of the hearing (“the asset pool”); 

   b)identify and assess the contributions of the parties within the meaning of s.90SM(4) of the Act, and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties (“the contributions”);

   c)identify and assess the relevant matters referred to in s.90SM(4)(d), (e) and (f) including the matters referred to in s.90SF(3) of the Act so far as they are relevant and determine the adjustment (if any) that should be made to the contributions-based entitlements the parties established at step two (“financial resources and needs”); and

   d)consider the effect of these findings and determination and review what order is just and equitable in all the circumstances of the case.[17]

   [17] In the marriage of Hickey (2003) 30 Fam LR 355, 39.

The asset pool

1. In considering whether or not it would be just and equitable to proceed to consider whether the parties’ interests and their property should be altered pursuant to the provisions of the Act, the asset pool was identified and findings were made in respect of those matters that I considered should be excluded. I do not therefore propose to undertake the task again.

2. The parties were in a relationship for approximately 16 years. I consider it appropriate in all the circumstances to consider this by way of a global approach rather than asset by asset as the respondent submits.

3. Either approach is legitimate and there is no binding principle of law controlling the exercise of discretion in the division of property.[18]

   [18] Norbis & Norbis (1986) 161 CLR 513.

4. The parties have each in some way contributed to the assets of the other during the course of their 16 year relationship.

Contributions

1. It is common ground that at the commencement of cohabitation the respondent had a significant property portfolio and was not in full-time employment, being occupied with the running of his properties and other projects. The properties were the subject of mortgages however the amounts outstanding at the time is not known.

2. There is no dispute that the properties are now unencumbered with the mortgages having been paid off during the relationship. I am not directed to any information about when they were paid off. The applicant does not submit that she directly contributed to the payment of those mortgages.

3. The applicant at the commencement of the relationship was working as a (occupation omitted). She had some accumulated superannuation, a motor vehicle and nominal assets.

4. The applicant’s evidence is that she received a taxable income for the 1999 financial year of $41,790. The income received by her went to payment of her share of the mortgage that had been obtained to purchase the parties’ first property at Property A.

5. The respondent maintained his role as a retired investor and did not work in paid employment throughout the relationship. Any income received by him was from his properties and share trading.

6. There is no dispute that from the beginning of their cohabitation, the respondent conducted his finances separately as if the parties were not a couple. This meant that the applicant contributed equally towards food, electricity, utilities, petrol and living expenses. That does not however cap her contributions, but rather acknowledges the contributions to what the parties saw as their joint expenses.

7. There is some controversy as to whether or not the applicant accepted this position but there is no dispute that the position was maintained for 16 years.

8. The applicant also replaced consumables such as linen and towels and other consumables such as cleaning products, air deodoriser, napkins and placemats.

9. The applicant in addition met the costs of her motor vehicle which was from time to time used for the benefit of the parties.

10. Whilst the respondent worked from home and the applicant was engaged in her occupation as a (occupation omitted), I accept the applicant’s evidence over that of the respondent’s that she undertook the majority of household chores.

11. The Property A property was purchased with the parties contributing equally to the deposit and securing a joint mortgage which they paid off in equal shares. The property was renovated at the equal expense of the parties.

12. It was subsequently sold and the proceeds applied to the purchase of the land at Property B and the subsequent construction of the house upon the land.

13. It is accepted that the applicant’s superannuation was drawn upon to enable a payment of $20,000 towards improvements on the Property B property.

14. It is also accepted that both parties provided physical labour associated with the building of the home at Property B.

15. The respondent concedes that the applicant made some contribution towards the conservation and improvement of his properties. He states that:

    …although my verifiable, non-financial contributions to the applicant’s previously owned (undisclosed) property in Property N, Victoria, is far greater than the applicant’s unsubstantiated, alleged contributions to some of my investment properties and holiday home, I am prepared to count the contributions as equal so that they simply cancel each other out.”[19]

    [19] Respondent’s affidavit filed on 2 June 2016, 32(b).

16. While this paragraph may be read as the respondent setting out a proposal for the resolution of this matter, I do consider that I am allowed to take it as a concession that the applicant contributed in a significant way, albeit not necessarily equal as the respondent says in his closing submissions, to some of his properties.

17. I should also note that the evidence supported the conclusion that while the Property N property was purchased in the applicant’s name, it was paid for by the applicant’s daughter and eventually transferred to her. Some financial assistance was received by her including an advance from the applicant, and a loan from the respondent however this was repaid. This point was conceded in the decision to exclude it from the asset pool.

18. I accept the applicant’s evidence that she assisted the respondent when he conducted repairs and maintenance of his various investment properties. However I am also cognisant of the fact that for most of the relationship, the applicant was working on a full-time basis as a (occupation omitted) and was also undertaking part-time jobs such as (occupation omitted). In other words while she assisted, she certainly did not have the time to carry out the bulk of the work due to other commitments.

19. I note the respondent used the study in the parties’ Property A property to undertake the administration tasks for his business. In other words, he ran his business from the parties’ home.

20. I am conscious of the fact that the parties maintained their partnership over 16 years. If the respondent was working or engaged on one of his properties, then I do not accept that the applicant was doing nothing in respect of other partnership activities such as undertaking home duties, or attending to the parties’ joint property.

21. I am also conscious of the fact that save for the Property B property, all of the real estate included in the schedule of the parties’ assets and resources, was owned by the respondent prior to the commencement of the relationship.

22. It is conceded that the applicant’s financial contributions towards those assets, which comprise the significant portion of the property pool, were minimal due to the somewhat unusual financial arrangements that the parties had between them. I do not however accept the respondent’s submission that she made no financial contribution.

23. The applicant lived with the respondent for 16 years. The parties were sharing expenses. A fairly strict financial regime was involved but it is difficult to see how over that period despite the best efforts of the respondent, there could be a strict quarantining of all of the properties from any financial input by the applicant be it by way of freeing up the respondent’s income to spend on the property due to her meeting expenses on the domestic front, or as simple as covering the cost of the petrol for her car when she transported the respondent to undertake tasks on the property.

24. I am obliged to also consider the applicant’s contribution to the conservation and improvement of those assets and the party’s contribution to the welfare of the family.

25. I accept that over the course of 16 years, the applicant did make a contribution to the conservation of the parties’ assets and furthermore accept that she made a contribution to the welfare of the family. Where the evidence of the parties differs on these topics, I prefer that of the applicant.

26. Counsel for the applicant correctly submits that when weighing contributions:

    a)it is a holistic exercise;[20]

    b)the weighing of contributions does not require different percentages being allocated to different periods;[21]

    c)there is no need for a causal link between the contributions of any particular asset or piece of property;[22]

    d)it is well established that the recognition of contributions is not the performance of a mathematical or accounting exercise or a balance sheet with debts, credits, set off’s and “contras”; [23]

    e)there is no principle guideline that renders direct contributions of income or capital are more important when compared against indirect or non-financial contributions.[24]

    [20] Dickons & Dickons (2012) 50 Fam LR 244

    [21] Bolger & Headon [2014] FAMCAFC 27, 23 – 28.

    [22] Dickons (2012) 50 Fam LR 244, 18.

    [23] Ibid, 25.

    [24] Hoffman & Hoffman (2014) 51 Fam LR 568, 52.

27. I accept the submission that the Court is placed in a difficult position as to the evaluation of contributions as the respondent has not produced any evidence of the value as at the date of cohabitation of the property, interests he introduced or the extent of the mortgage indebtedness to enable the equity as it then stood to be ascertained.

28. It is suggested that without such evidence the Court can only have general regard to the fact of an initial contribution and not the value of it.

29. I come back however to the position that these properties were in existence as at the date of commencement of cohabitation and no additional property has been added to the portfolio since, save and except for the property that was purchased in the joint names of the parties.

30. Furthermore, expenditure on the properties appears to have been limited to conservation and improvement. The submission that there was no development of the properties, just market forces which on the evidence before the Court appear to of course be responsible for the growth in the value of the properties is accepted.

31. The properties that were in place at the commencement of cohabitation essentially remain there as at the date of the hearing. Part of the reason for them remaining within the respondent’s control must to some extent be attributed to the parties’ efforts, noting that the applicant had less time to commit to these projects than the respondent and the other matters referred to above.

32. The parties have been residing in a genuine domestic relationship for a long period of time and I accept that the separation of finances does not constitute nor attract special weighting or consideration. I accept counsel’s submission that the conduct of separate finances is but one matter to be brought to account in analysing the nature, form and characteristics and origin of the property currently comprising the property to which s.79 (s.90SM) of the Act applies.[25]

    [25] Dickons & Dickons (2012) 50 Fam LR 244, 21.

33. I accept the submission that the separation of finances was not otherwise reflected in the parties’ daily domestic lives.

34. I accept the submission that a global approach should be undertaken with some allowance made for the fact that the applicant advanced $40,000 to her daughter during the course of the relationship.

35. I do not however accept that the evaluations of contributions should be expressed in percentage terms as 55/45 in favour of the de facto respondent.

36. I consider it more appropriate that a more significant allowance be made for the initial contribution which in essence remains in existence today.

37. In the circumstances, I would assess the contributions of the applicant to the acquisition conservation and improvement of the assets to be 25%.

Financial resources and needs

1. The applicant was born on (omitted) 1956 and is aged 61. The respondent was born on (omitted) 1960 and is aged 57 this year. There are no significant issues in respect of the parties’ health on the evidence before me.

2. The applicant remains employed as a (occupation omitted) with the (employer omitted) albeit on a contractual basis. At the date of trial her weekly income was $1,962 with expenses being $940 per week.

3. She has property in her possession or control worth approximately $170,000 and superannuation of approximately $9,301.

4. The respondent continues in his role as a retired investor attending to the real estate and shares that he controls as and when required. He has property in his possession or control worth in excess of $2 million.

5. The respondent’s property portfolio is now unencumbered, the mortgages having been paid off over the course of the relationship.

6. His Financial Statement discloses an income of $1,206 per week with expenses of $482 per week.

7. I note on the respondent’s submissions that he has trading losses and other tax losses. I cannot exclude the possibility that these may be brought to account to minimise any tax he may have to pay in future years.

8. The respondent’s financial resources are superior to those of the applicant.

9. Neither party has the care or control of a child under the age of 18. The commitments of the parties are set out in their documents filed with the Court. Both parties have made errors in completing their Financial Statements and this was explored during the course of their giving evidence.

10. Neither party claims to be entitled to receive a pension or benefit in addition to the income referred to above.

11. Neither party is seeking maintenance from the other.

12. The applicant seeks to argue that she resigned from a permanent position in New South Wales to move to South Australia with the respondent. I accept that this in fact occurred, however, do not accept that it was the respondent’s decision alone to move to live in South Australia.

13. The applicant does not have a responsibility to support any other person.

14. The respondent submits that he now has his aged mother living with him. Having observed her come to my Court every day that the respondent was here to observe proceedings and sit through the trial I accept what he says. I do not however accept that this is a matter to be taken into account as I have already noted the significant assets controlled by his mother previously in these Reasons.

15. The respondent’s evidence about his meeting with his brother and mother and the subsequent changing of her Will to exclude him as a beneficiary was clearly designed to avoid her assets being caught up in these proceedings.

16. I do not accept that the respondent, who has assumed the role of caring for his mother, will be left with nothing on her death.

17. I accept that there is a high probability that once these proceedings are concluded, that the Will may be changed again to reflect the previous position that the estate of his mother will be divided equally between the respondent and his brother. Should this occur it will provide a further windfall to the respondent.

18. On consideration of the personal assets of the parties, the respondent will be in a significantly stronger financial position to that of the applicant. Any funds that may be received from his mother’s estate would significantly enhance that position.

19. I therefore, having regard to the matters set out above and the relative size of the assets and resources under consideration consider that there should be a further adjustment of 5% in favour of the applicant.

Conclusion

1. This would mean that the applicant would receive 30% of the assets and resources held by the parties.

2. This equates to approximately $667,663.55 (30% of $2,225,545.18).

3. The applicant currently has assets in her control of $184,896.67 as set out in the table below.

Monies paid by respondent to applicant, (used to buy land)	$170,000.00
Motor vehicle in applicant’s possession	$710.00
Jewellery, furniture and chattels	$2,885.00
Ride on mower	$2,000.00
Applicant's (omitted) Superannuation	$9,301.67
Total	$184,896.67

1. The respondent would therefore have to pay the applicant $482,766.88.

2. The respondent currently has assets in his control of $2,040,648.51 as set out in the table below, less the amount to be paid to the respondent.

Property G, NSW $1,262,311 respondent’s share	$394,472.00
Property B (owned by (omitted) Trust and the respondent is sole beneficiary)	$260,000.00
Property L, TAS (per valuation)	$40,000.00
Property E, NSW	$304, 593.00
Property F, NSW	$326,317.00
Property J, NSW $450,000, the respondent’s share	$163,175.00
Property H, NSW, $440,000, respondent’s share	$207,750.00
Property I, NSW, $500,000, respondent’s share	$125,000.00
(omitted) Account No (omitted) (respondent) as at 30 September 2016	$3,248.00
(omitted) (respondent) Account No. (omitted)	$473.59
(omitted) Bank (respondent) Account No.(omitted)	$170.92
(omitted) Capital Management as at 22 April 2016	$130,445.00
Holden (omitted)	$350.00
Mercedes	$400.00
Camera	$400.00
Respondent’s payment of funds to his mother, added back	$86,000.00
SUBTOTAL	$2,042,794.51
(omitted) Credit Card	$2,146.00
Amount paid to the respondent	$482,766.88
TOTAL	$1,557,881.63

1. The respondent’s primary income appears to be from the rent he receives for his properties. He will need to raise some money to pay the applicant out however when he has a significant sum held with (omitted) and his mother has $86,000 and there is no evidence to suggest that this does not remain available to him, I consider that he would be in a good position to have that money available to meet his obligations to the applicant.

2. In the circumstances, I consider it appropriate to make the orders in accordance with those set out at the commencement of these Reasons.

I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Judge Cole

Date: 14 March 2017