TERZIAN & OHANIAN

FAMILY COURT OF AUSTRALIA

TERZIAN & OHANIAN

[2016] FamCA 24

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Assessment of contributions – Separation under one roof following a marriage of two and a half years – Where there is one child of the marriage – Where the husband contributed the former matrimonial home, which was now and then the only substantial asset of the parties, at the commencement of cohabitation – Where the husband was the main financial provider and the wife was the child’s primary carer during the marriage – Where the husband’s brothers lent him substantial amounts of money during and after the marriage – Where the child will be living with the wife and spending significant and substantial time with the husband in the future – Contributions assessment of 80/20 per cent in favour of the husband – 10 per cent adjustment in favour of the wife on account of s 75(2) factors – Orders made providing that the husband retain the home and the wife receive a payment equivalent to 30 per cent of the asset pool.

Family Law Act 1975( Cth) ss 75, 79
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Terzian

RESPONDENT:

Ms Ohanian

FILE NUMBER:

SYC

5871

2013

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

12, 13, 14 & 15 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Taylor & Scott Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Sexton Family Lawyers

Orders

IT IS ORDERED

That within three months of the date hereof the husband pay to the wife by way of property settlement the sum of $148,685.
That in the event the husband fails to make the payment referred to in Order 1 by the due date, then the husband shall do all acts and things required to sell the property at B Street, Suburb C (“the property”) and to pay from the proceeds of sale, in the following manner and priority:
(a)The amount outstanding pursuant to the existing mortgage secured on the property.
(b)Legal costs and agents costs on sale.
(c)The sum of $148,685 to the wife together with interest on that sum, calculated in accordance with the Family Law Rules 2004 (Cth), from the due date until the date of payment.
(d) The balance to the husband.
That upon payment to the wife of the whole of the sum referred to in Order 1, but not earlier than 21 days from the date of these Orders, the wife shall vacate the property and the husband shall thereafter, as against the wife, be entitled to the sole occupation of the property.
That subject only to these Orders, each party is solely entitled to any property in his or her possession at the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5871 of 2013

Mr Terzian

Applicant

And

Ms Ohanian

Respondent

REASONS FOR JUDGMENT

Mr Terzian (“the husband”) and Ms Ohanian (“the wife”) were both born in Country D and are of Country E descent. The husband is 42 years old and the wife is 32 years old. They met in Australia and were married by a civil celebrant in 2010. They did not live together until they married in Country D later in 2010.
There is one child of the marriage, F (“the child”) who was born in 2012.
The parties separated on 26 January 2013 but remained living in the same home and continued to live there at the commencement of the hearing.
On the first day of the hearing the parties were able to resolve all aspects of the parenting dispute. Orders were made by consent which have the effect that the child will live primarily with the wife and spend time with the husband, initially on two non-consecutive weeknights and one weekend day each week, increasing, by the time the child is six years old at the commencement of the 2019 school year, to spending five nights each fortnight with the husband. By that time, school holidays will be equally shared between the husband and the wife.
In relation to financial matters, the husband seeks orders that he retain the former matrimonial home at B Street, Suburb C (“the home”) which he purchased some eight years before the parties married, and that he pay the wife an amount equivalent to 20 per cent of the net equity in the home.
The wife seeks orders that the home be transferred to her and that she pay the husband a sum of money. The wife contends that she should receive 47.5 per cent of the net assets. She proposes to make the payment to the husband with the assistance of her father.

THE HEARING

The husband relied on two affidavits by himself, one affidavit by his brother, Mr G Terzian, and two affidavits by his brother, Mr H Terzian. The affidavits of the husband’s brothers dealt with various sums of money asserted by them and the husband to have been advanced by them to the husband from 2005 until the present. Those assertions were denied by the wife.
The wife relied on an affidavit by herself and affidavits by her mother, Ms I, her father, Mr J Ohanian, and her brother, Mr K Ohanian. The wife’s mother was not required for cross-examination.
Both parties agree that it is just and equitable to make an order adjusting their property interests. The significant asset is the home in the name of the husband to which the wife has made contributions which cannot be acknowledged unless some order is made.
At the commencement of the hearing, a joint balance sheet was tendered. In the course of submissions, a number of matters were resolved and concessions made and the balance sheet, as amended, is reproduced below. It can readily be seen that the asset pool is modest and that there are few areas of disagreement.

Ownership		Description	Wife’s value	Husband’s value
ASSETS
1	H	B Street, Suburb C NSW	$ 925,000	$ 925,000
2	H	L Pty Ltd (ABN …)	$ 34	$ 34
3	H	Motor vehicle 1 (…)	$ 500	$ 500
4	H	Motor vehicle 2 (…)	$ 1,000	$ 1,000
5	H	Tools of Trade	$ 1,365	$ 1,365
6	W	Jewellery	$ 3,705	$ Disputed
Total		$ 931,604

PARTIAL PROP SETTLEMENT / S 75(2)(O)
7	W	Wife’s withdrawals/internet transfers from her Westpac savings account (…)	$ Disputed	$ 18,000
8	H	Husband’s drawdown on mortgage on 19.10.12	$ 43,000	$ NIL

LIABILITIES
9	H	RAMS Mortgage as at 4/1/16	$ 358,286	$ 358,286
10	H	CBA Visa Card (…) as at 12/12/15	$ Disputed	$ 9,304
11	H	Money owed to Mr H Terzian / M Pty Ltd and Mr G Terzian	$ Disputed	$ 65,350
Total		$ E 358,286+ disputed items	$ E432,940

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife’s value	Husband’s value
12	H	Australian Super as at 6/8/15	Accumulation	$ 60,765	$ 60,765
13	W	Care Super	Accumulation	$ 19,471	$ 19,471

Total

$ 80,236

$ E80,236

The disputed items will be dealt with using the item numbers appearing in the balance sheet. The major items of dispute are the asserted loans to the husband from his brothers and the wife’s use of funds after separation.

ITEM 6 – THE WIFE’S JEWELLERY

The husband alleged that, in addition to the items which were valued by the single expert, the wife withheld from valuation a cross set with diamonds and a thick gold bracelet. The absence of those items had been the subject of complaint in correspondence from the husband’s solicitors to the wife’s solicitors.
In cross-examination the wife denied that she owned either item. She gave evidence that she had worn the cross, which she had borrowed from her mother and returned to her mother, but that it belonged to her mother. The wife’s mother was not required for cross-examination.
The husband deposed to having purchased a number of items of jewellery for the wife but those items did not include the cross or the bracelet. It was his evidence that the wife owned the cross before marriage and that the bracelet had been a gift to her from her mother. Again, this was not put to the wife’s mother.
There is no evidence of the existence or ownership of the disputed items other than what each of the husband and the wife has said and on that basis I am not able to make a finding that the evidence of either should be preferred. For the purpose of these proceedings, the wife’s jewellery will be valued at $3,705.

MONEY PROVIDED TO THE HUSBAND BY HIS BROTHERS

This was the major issue in the hearing.
The husband asserts that funds have been provided to him by his family in two ways. Firstly, he asserts that his family advanced $45,000 to him in 2005. Secondly he asserts that he has, since 2012, borrowed money from his brothers to meet a shortfall between his expenses and his income.
The wife does not accept that any money is owed to the husband’s family. However, the wife does not assert that the funds were not provided to the husband as he and his brothers assert. It was not put to either the husband or his brothers in cross-examination that the funds were not provided to the husband.
The transactions need to be considered separately.
The husband’s father died in Country D in 2003 leaving an estate of $60,000 to be divided between his widow and the husband and his two brothers. The husband spent most of his share of the money. The balance of $46,615, being the shares of the husband’s mother and his two brothers ($45,000), and the balance of the husband’s share ($1,615) was held in a bank account by Mr G Terzian. On 18 April 2005, the sum of $46,615 was transferred, by agreement between them, into an account with the Commonwealth Bank of Australia (“CBA”) in the name of the husband.
The husband and his brothers gave evidence of a conversation between them where it was agreed that the husband would hold the funds in his mortgage account but that the money would be paid back when requested.
Later in 2005 the husband, wanting to invest in a business, asked his brothers and his mother to lend him their $45,000. Mr H Terzian deposed that there was an agreement to lend the money to the husband who was told “…when we need it back we’ll let you know”.
The husband and his brothers were adamant that the money was a loan and that the husband was expected to repay it.
The business failed.
The wife does not dispute that the husband’s brothers and mother provided $45,000 to the husband. It is her case that the husband repaid the money in fortnightly or monthly “cash instalments” to his brothers. The wife is silent as to any repayment of the money asserted to have been advanced by the husband’s mother.
The wife deposed to a conversation with the husband before they were married where he told her that he had lost all of the money he had borrowed from his brothers “and am paying them back their share of what I borrowed.” The husband denied that the conversation occurred. The husband’s brothers denied that the husband had repaid any of the amount before September 2012.
The wife deposed that six months before the parties’ separation the husband told her that he did not owe his brothers any money. The husband denied that conversation took place.
The wife deposed to seeing the husband “making cash payments to his brothers on at least 5 separate occasions” in the two years before separation. That was the totality of her evidence on this issue.
The wife did not specify the amounts she saw change hands. It is not possible, from her evidence, to know whether the sums she alleges to have seen were a few dollars or thousands of dollars.
The husband denied making cash payments to his brothers as alleged by the wife. His brothers denied receiving payments as she alleged.
The wife alleged that the husband did work for cash on friends’ cars and that was the source of the $45,000 she alleged was repaid. The husband agreed that he worked on cars belonging to friends but said that he was paid cash for parts which he provided and the cash was used by him to pay for the parts. No other corroborative evidence was brought in the wife’s case.
The wife has not established that the husband had $45,000 available to him to repay his brothers before September 2012 or that he did so.
I accept that, as at September 2012, the husband had not repaid the $45,000.
Mr H Terzian deposed that, in September 2012, he and Mr G Terzian were negotiating to purchase a property together. They asked the husband to repay the whole of the $45,000 (although $15,000 belonged to their mother). Mr G Terzian gave evidence that he asked for the money to be paid in cash.
Neither of the husband’s brothers was challenged in relation to that evidence although it was put to them that they asked for the money to be returned because they were concerned about the state of the marriage. However, it was not disputed that they asked for the money to be repaid.
The husband told them that he could make arrangements to draw down $43,000 on his mortgage. $43,000 was paid from the husband’s RAMS home loan account into the husband’s account with CBA on 19 October 2012. On 26 October 2012 the sums of $23,000 and $20,000 were withdrawn from the husband’s CBA account. Mr H Terzian deposed that in October 2012, the husband paid $20,000 to him in cash and, about a week later, a further $23,000 in cash.
Both the husband and Mr H Terzian depose that the husband subsequently paid a further sum of $1,000.
Much was made in the wife’s case that no loan agreement was prepared at the time of the advance of the funds. Both Mr H and Mr G Terzian gave evidence that they trusted their brother to repay the funds. Mr G Terzian gave evidence that he believed that the fact that the bank statements showed the full amount being transferred from his account to his brother’s account was sufficient evidence of the loan.
Neither the husband nor his brothers was challenged in cross-examination about their accounts of the conversations at the time the money was advanced. I accept that the amount of $45,000 was a loan to the husband and that he repaid that loan by drawing down on the RAMS mortgage in 2012. Accordingly, I do not propose to notionally add these funds back into the asset pool or to consider them under s 75(2) as sought by the wife.
Prior to September 2012, the wife had contributed her earnings to the household expenses. She earned $28,962 in 2010, $27,707 in 2011 and $39,222 in 2012. The husband paid the mortgage and contributed to other household expenses. F was born in 2012 and the wife took maternity leave for a year. In the 2013 financial year her income was $21,440, including a maternity payment of $9,461 from her employer. (She used $5,900 of that sum towards legal fees). The husband’s income was a little more than the wife’s.
In about September 2012, the wife stopped contributing to household expenses.
In about November 2012, the husband approached his brothers for financial assistance. The brothers agreed to lend money to the husband on the basis that it would be repaid when it was needed by them. The brothers specifically agreed that no interest would be repayable on the funds advanced.
On 4 December 2012, Mr H Terzian paid the husband $5,000 which was used to repair a concrete area at the home. A further $4,000 was paid to the husband by Mr H on 21 December 2012. There is a dispute about what was done with the $4,000. The husband deposed that he gave the money to the wife because he was going overseas and that she spent the whole amount. The wife gave evidence that he gave her $2,000 and that she deposited that sum into their joint account. Whatever may have been done with the money, there is no dispute that it was paid. Mr H continued to advance money to the husband and, at hearing, the total amount advanced by him was $126,000.
Mr G Terzian began advancing money to the husband on 6 November 2013. He advanced a total of $65,050.
The brothers became concerned about the mounting sums and asked their solicitor to prepare a document. On 12 March 2014, the brothers and the husband signed a Deed acknowledging advances of $52,050 and future advances up to $100,000. The amount is expressed to be repayable on or before 1 July 2024.
A further Deed was executed on 27 April 2015 acknowledging advances of $105,000 and future advances up to $160,000. The repayment date is I July 2030.
The wife does not dispute that the money was paid by the husband’s brothers to the husband as they allege and their bank statements demonstrate. She asserts that there is no obligation to repay the advances.
Both the husband and his brothers were adamant that the money has to be repaid.
Mr H Terzian is an electrician and builder. Mr G Terzian manages a retail store. There is no evidence that the sums advanced to the husband are insignificant in their financial affairs. It was asserted in cross-examination of the brothers that they instructed the solicitor to prepare the Deeds because they were worried that the money owed to them would not be properly acknowledged in the family law proceedings. They agreed. However, that fact does not detract from their evidence that they advanced the money in the expectation that it would be repaid.
The money was borrowed by the husband because his income was not sufficient to meet the mortgage and the expenses of the family. After September 2012 the wife withdrew her financial contribution. She resumed a small contribution in March 2014 to which further reference will be made.
A Financial Statement sworn by the husband in March 2013 discloses his receipt of gross income of an estimated $1,200 per week and expenses of $1,180. The mortgage payments were $516.71 per week.
In October 2013 the husband’s gross income was $991 per week and his expenses were $1,280.
In September 2014 the husband’s gross income was $729 per week and his expenses were $1,244.
The husband gave evidence, and I accept, that the only way he could meet his expenses was to borrow from his brothers. Some of the money borrowed from his brothers was used to pay legal expenses.
I am satisfied that the husband has borrowed $126,000 from Mr H Terzian and $65,050 from Mr G Terzian and that those amounts must be repaid.

HOW SHOULD THE AMOUNTS OWED TO THE HUSBAND’S BROTHER BE TREATED?

The amounts paid by the husband’s brothers were deposited into the husband’s CBA account where his earnings were deposited. It is not possible to determine whether any particular expense was paid for using borrowed money or earnings and to do so would be artificial.
In the relevant period the husband paid $46,124 in mortgage payments, and he specifies further payments totalling $50,615 for necessary expenses including tax.
Counsel for the husband submitted that the amount of $65,350 should be treated as a liability on the balance sheet. Counsel for the husband conceded that the balance of the borrowed amount should be regarded as having been spent on legal fees and should be disregarded. This concession was not challenged.
Counsel for the wife submitted that because the money, according to the 2015 Deed, is not repayable until 2030, and no interest is payable, it would be unjust to treat the present value of the sum as a liability.
In relation to the amounts owed to Mr H Terzian, the husband has agreed to transfer an interest in the home, commensurate with the quantum of his loan, to his brother. That transaction will take place once these proceedings are concluded. Thus it is not arguable that the payment to Mr H Terzian will be postponed.

Whilst the 2015 Deed provides that the husband has no legal obligation to repay the amount owed to Mr G Terzian until 2030, it was the evidence of the husband that he will repay his brother as he can. Mr G Terzian gave evidence that he expects the husband to make repayments before 2030 as he has the capacity to do so.
Thus 66 per cent of the debt will be repaid immediately by the transfer of an interest in the house and the balance will be repaid as the husband is able with a definite end date in 2030. However the full amount is owed and the portion that was not used for legal fees should be treated as a liability.

ITEM 7 – MONEY WITHDRAWN BY THE WIFE

The wife was cross-examined about three withdrawals from her Westpac account. On 4 June 2012 she withdrew $5,000. She gave evidence that the money was to be used to buy a car for her to use. No car was bought. The wife said that she gave the $5,000 to her father to repay him money he had lent her. Neither the wife nor her father, in their affidavits, deposed to any such loan. The wife’s father had no recollection of receiving $5,000 from her.
On 18 June 2012 she withdrew a further $5,000. She was unable to say what she did with that money other than to say that it was her money.
On 5 July 2012 the wife withdrew $3,000 from her account and on the same day withdrew $5,000 in cash. She was again unable to say what she had done with that money other than to say that she needed it for something.
A total of $18,000 was withdrawn by the wife between 4 June 2012 and 5 July 2012 and her use of that money has not been explained. That amount is significant in the financial affairs of these parties but it is more appropriate that it be considered in the context of s 75(2) adjustments rather than that it be added back to the asset pool.

ITEM 10 – THE HUSBAND’S CREDIT CARD DEBT

The husband and the wife separated on 26 January 2013. There was no evidence of the amount outstanding on the husband’s credit card at the date of separation.
The husband gave evidence that he used his credit card to pay all of his expenses including entertainment, personal expenses, motor vehicle expenses and expenses for the child. He then paid the credit card from his CBA bank account into which both his wages and money borrowed from his brothers was paid.
While it is likely that some of the expenses incurred on the credit card were for the maintenance and utilities on the home, there was no evidence of relevant amounts.
The wife did not seek to have her own liabilities for personal expenses treated as a liability in the proceedings.
The parties have been separated for about three years. The wife ought not to be held liable for any share of the husband’s living expenses. This liability will be excluded.

ASSETS AVAILABLE FOR DISTRIBUTION

Ownership		Description	Value
1	H	B Street, Suburb C NSW	$ 925,000
2	H	L Pty Ltd (ABN …)	$ 34
3	H	Motor vehicle 1 (…)	$ 500
4	H	Motor vehicle 2 (…)	$ 1,000
5	H	Tools of Trade	$ 1,365
6	W	Jewellery	$ 3,705
Total		$ 931,604

Liabilities
8	H	RAMS Mortgage as at 4/1/16	$ 358,286
9	H	Money owed to Mr H Terzian / M Pty Ltd and Mr G Terzian	$ 65,350
Total		$ 423,636

The net assets available for distribution between the parties, excluding superannuation, are $507,968. Neither party has sought a superannuation splitting order.
The parties’ respective superannuation entitlements are set out below.

Member		Name of Fund	Type of Interest	Value
12	H	Australian Super as at 6/8/15	Accumulation	$ 60,765
13	W	Care Super	Accumulation	$ 19,471

Total

$ 80,236

CONTRIBUTIONS AT THE DATE OF COHABITATION

The husband was the owner of the home which had an agreed value of $580,000 and was subject to a mortgage of $370,000. The home was furnished and the husband owned two motor vehicles. He had savings of $5,000 and $37,700 in superannuation.
The husband owed his brothers and his mother $45,000 and had a credit card debt of $1,000. Thus the husband had net assets, excluding his superannuation, furniture and the vehicles, of $169,000 and $37,700 in superannuation.
The wife deposed, variously, to having savings of $23,000, $20,000 or $7,500. The husband gave evidence that the wife had $7,500 in savings. The wife was asked to produce documents to substantiate her claims about her savings. Despite giving evidence that she recalled having the relevant statements, she did not produce them and did not attempt to obtain the statements from the bank. The wife did not establish that she had savings in excess of the amount admitted by the husband and I find that she had savings of $7,500. She had some chattels and no debts. She had superannuation entitlements of $5,834.
Thus the initial contributions of the husband substantially outweighed the initial contributions of the wife, including, as they did, the home which was then and now is the only substantial asset of the parties.

CONTRIBUTIONS DURING COHABITATION UNTIL SEPTEMBER 2012

Other than the payment of $44,000 to the husband’s brothers in 2012 and the removal of $18,000 by the wife from her Westpac savings account in 2012, both parties contributed their earnings and their efforts to the enterprise of their family.
After the child was born the wife took maternity leave and the husband was the main financial provider. During that period the wife was the child’s primary carer.
Both parties did household work and both cared for the child according to their availability.
Their contributions were equal in this period. The period of equal contribution was from July 2010, when they started to live together after their marriage ceremony in Country D, until September 2012, a period of two years and two months.

CONTRIBUTIONS FROM SEPTEMBER 2012 TO THE HEARING

From September 2012 until March 2014, although the wife continued to live in the home, she made no regular contribution to the costs of accommodation. The husband paid the mortgage and all of the outgoings on the home including utilities.
The wife returned to work part-time in July 2013. Both before and after she returned to work, she received payments from Centrelink.
In March 2014, the wife commenced paying the sum of $150 per week to the husband. Her solicitors described the payment in a letter as “contribution to outgoings…however defined”. In March 2014 the mortgage payments alone were $341 per week.
In the second half of 2014, the wife, at the request of the husband, paid half of an unusually large electricity bill.
Thus from September 2012 until March 2014 the husband provided accommodation for the wife with no contribution from her. From March 2014 the wife’s accommodation costs were subsidised by the husband.
Both parties continued to care for the child in the home. The husband paid child support to the wife as assessed for the child and purchased nappies, food, medication and toys for him, as did the wife. The husband and the wife each paid half of the cost of a medical procedure for the child when grommets were inserted in his ears.
The husband’s contributions in this period were substantially greater than the wife’s. The parties would not have the substantial asset of the home had the husband not purchased it in 2002, paid the mortgage for the whole period since then and had the husband’s brothers not lent him sufficient funds to maintain his payments, in circumstances where he could not afford to do so from his own earnings.
Overall contributions by the wife are assessed to be 20 per cent.

SECTION 75(2)

Each of the parties will be required to provide housing for the child. The wife will be his primary carer but he will spend substantial and significant time with the husband.
Both parties will continue in employment. The husband estimates that his present income is gross $1,100 per week. The wife’s present income is gross $767 per week, exclusive of government benefits.
The wife currently works five days each week. Her working ability is not curtailed by her care of the child. He attends at the day care centre where she works on three days each week and on the other days he is cared for by his maternal grandmother. The wife plans to operate a day care business but there is no evidence of projected earnings. It cannot be assumed that their respective earnings will change greatly. If the wife operates a day care business, then her earning capacity is not affected by her need to care for the child since he can be cared for in the course of the business.
The husband will retain his superannuation which is presently worth $60,765 as opposed to the wife’s entitlement of $19,471. They are aged 41 years and 32 years respectively. They have many more years to accumulate superannuation which will not be available to them for many years.
The husband will pay child support for the child as assessed, according to his and the wife’s respective earnings.
Each has a debt for legal fees.
The wife retained $18,000 of joint funds prior to separation for which she has not accounted.
The disparity in their earnings and the disparity in their superannuation entitlements (taking into account the husband’s greater superannuation entitlement at the commencement of the marriage) warrants a modest adjustment in favour of the wife of 10 per cent.

THE WIFE’S APPLICATION FOR THE HOME TO BE TRANSFERRED TO HER

The wife asks the Court to order that the home be transferred to her. That application is opposed by the husband who wishes to retain the home.
In support of her application, the wife deposed that she wishes to run a day care business from the home. The home is part of a strata titled complex. The wife has not approached the strata manager to ascertain whether such a proposal would be allowed according to the strata rules. In any event, there is no evidence that she cannot run her business from rented premises.
The wife’s application is that she discharges the existing mortgage over the home and that she pay the husband any sum determined to be his entitlement. On the basis of the findings I have made, the wife would be required to pay the husband some $352,000 and, in addition, to refinance the existing mortgage of $358,286.
An application has been lodged by the wife and her father to borrow $450,000 from RAMS. There is no evidence that the application would be approved. The wife’s father is 60 years old. His net income is $750 per week. The wife’s mother does not work in paid employment. The wife’s brother gave evidence that he would assist as much as he could but he is not a wealthy man. He has about $560 per week to pay his own living expenses after he pays tax and rent. His ability to assist the wife, after paying his own living expenses, is minimal.
The wife’s net income (after tax) is about $667.
It cannot be assumed that the wife would be able to raise a mortgage sufficient to discharge the existing mortgage.
The amount which might be required to be paid to the husband, if the home were to be transferred to the wife, is to be found in savings by the wife’s parents. The wife’s father deposed that he had savings of some $224,000. Within the past few weeks, $50,000 from that fund has been paid to the wife’s solicitors on account of legal fees, leaving $174,000 available to pay to the husband.
The wife also has outstanding legal costs, after accounting for costs paid and money held in trust, of about $10,000.
The evidence does not establish that the wife is likely to be able to borrow any further amount or to be able to refinance the mortgage and pay the sum to which the husband would be entitled.
The wife has not established that she is in a position to acquire the husband’s interest in the home.
The husband, from his own income, cannot afford to pay out the wife’s interest. However Mr H Terzian gave evidence that he is currently selling a property which he owns jointly with his brother Mr G and that he expects, for his share, to receive about $450,000. He will use those funds to provide money to pay the wife’s entitlement, taking in return a share in the house.

CONCLUSION

The net assets of the marriage total $507,968. The wife is entitled to 30 per cent of that sum being $152,390. She has jewellery worth $3,705 and thus there should be a payment to her of $148,685, in circumstances where, for the reasons I have set out, the husband will retain the home.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 January 2016.

Associate:

Date: 22/1/2016

[2016] FamCA 24

22 January 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies