Vadisanis and Vadisanis and Anor

FAMILY COURT OF AUSTRALIA

VADISANIS & VADISANIS AND ANOR

[2013] FamCA 14

FAMILY LAW - PROPERTY – alteration of property interests – where the intervener is the husband’s mother – where the intervener asserts that the parties are indebted to her by way of loans or holding monies in trust on her behalf – where the husband accepts the intervener’s case – where the wife denies that the parties are indebted to the intervener

Family Law Act 1975 (Cth)
Limitation Act 1969 (NSW)
Duties Act 1997 (NSW)
Stamp Duties Act 1920 (NSW)

Kowaliw and Kowaliw (1981) FLC91-092
Ogilvie and Adams [1981] VR 1041

APPLICANT:

Mr Vadisanis

RESPONDENT:

Ms I Vadisanis

INTERVENER:

Ms J Vadisanis

FILE NUMBER:

SYC

6377

2008

DATE DELIVERED:

22 January 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

20-22 February 2012, 13 July 2012, 13 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Johnston Vaughan Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

COUNSEL FOR THE INTERVENOR:

Mr Farmakidis and

Mr Connolly

SOLICITOR FOR THE INTERVENOR:

JSM Lawyers

Orders

The husband and the wife are hereby declared to be indebted to the intervener in the sum of $329,397.63 with such sum representing the aggregate of the following:
(a)a debt of $224,397.63 in respect of the Loan made on 6 June 1997 for a principal sum of $65,000 plus interest at 10 per centum per annum payable until 6 June 2010 plus
(b) a debt of $50,000 in respect of the “Award Monies” plus
(c) a debt of $100,000 in respect of the “O Street Loan” less
(d)a credit of $45,000 in respect of monies repaid to the intervener by the husband post separation.
The parties forthwith do all acts and things to place on the market for sale and sell the property situate at W Street, Town E in the State of New South Wales (NSW) (known as “the W Street property”) by public auction on a date six weeks from the date of these Orders (unless otherwise agreed in writing between the parties as to the timing of sale) with a real estate agent as agreed or failing agreement as determined by the President of the NSW division of the Australian Property Institute, with the reserve price for sale at auction to be fixed at $400,000, with the proceeds of sale to be distributed in the following order and priority:
(a) in payment of all costs and expenses associated with the sale
(b) in payment of any mortgage
(c)in payment of $329,397.63 to the intervener
(d)in payment of $60,000 to the wife for the benefit of M and R (together, “the children”); the wife is to hold this amount on trust for the children but is given permission to apply it to the purchase of a property in which the children will reside with her, provided that any such application to the purchase of property is secured in favour of the children against the title to the property (with power in the trustee to vary the real estate offered as security for the said sum providing the value of the equity against which the said sum is charged exceeds the amount of the capital of the trust by at least the sum of $15,000) and that the trust fund will vest in each of the children equally upon the youngest child attaining the age of 18 years
(e)in payment of the balance, if any, then remaining in the ratio of 57 per centum thereof to the wife and 43 per centum thereof to the husband.
In the event that the sale of the W Street property does not generate sufficient monies to meet the obligations of the husband and wife to the intervener and to the children, those obligations to the extent that they are unmet are to be paid as hereinafter provided in Order 5.
In the event that the W Street property does not sell when first offered for sale by public auction, or subsequently at a price as agreed between the parties and a purchaser following the first public auction, then it shall again be listed for sale by public auction at six weekly intervals until sold, with the reserve price for sale at each subsequent auction to be five per centum less than the reserve price of the previous public auction with the proceeds of sale on settlement to be distributed in accordance with Order 2 above.
The funds held in the controlled monies account shall be applied in the following order and priority:
(a)in payment of any of the obligations to the intervener and the children referred to in Order 2 above which are not met upon the sale of the said property
(b)in payment of the balance, if any, then remaining in the ratio of 57 per centum thereof to the wife and 43 per centum thereof to the husband.
The husband is to do all acts and things necessary to transfer to the wife all of his right, title and interest in the Mercedes Benz motor vehicle so that the wife may retain it absolutely.
The husband is declared to be the legal and beneficial owner of the Jaguar motor vehicle, the diamond ring in his possession, and the household contents in his possession.
The wife is declared to be legal and beneficial owner of the shares held in her name and the household contents in her possession.
The husband and wife shall retain absolutely and be declared solely entitled to superannuation held in their own names.
Except as otherwise provided for in the Orders herein, the husband and wife shall retain all personal items and other property in their name, possession or control.
Except as otherwise provided for in the Orders herein, the husband and wife shall be declared liable for all debts and liabilities in their own name and shall indemnify the other in relation to the same.
With respect to the funds paid to the husband and wife from the controlled monies account pursuant to prior Orders of this Court:
(a)the $10,000 paid to the wife on 4 February 2009 is hereby declared to be a partial property settlement to the wife
(b)of the $55,000 paid to the wife on 6 June 2011, $15,000 of such sum is hereby declared to be a partial property settlement to the wife and the balance is hereby declared to be an interim maintenance payment to the wife
(c)the $25,000 paid to the husband on 6 June 2011 is hereby declared to be partial property settlement payments to the husband.
The Docket Registrar/Registry Manager is to transmit in accordance with the Court’s obligations under the Duties Act 1997 (NSW) a copy of the mortgage instrument tendered by the intervener as annexure “C” to her affidavit filed on 15 December 2011 to the NSW Chief Commissioner of State Revenue together with the names and addresses of the mortgagors who are primarily liable to pay duty on the mortgage.
The Docket Registrar/Registry Manager is to refer to the Chief Executive of Centrelink, a copy of these Orders and Reasons for Judgment.
In the event of a party failing for a period of seven days to do all acts and things necessary to give validity and effect to the Orders herein, a Registrar of the Family Court of Australia at Sydney is hereby empowered pursuant to section 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary in the place and stead of the defaulting party to give validity and effect to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vadisanis & Vadisanis 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: SYC6377 of 2008

Mr Vadisanis

Applicant

And

Ms I Vadisanis

Respondent

And

Ms J Vadisanis

Intervener

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings between the husband and wife to a marriage in which each of them seeks an alteration of their property interests.
The husband’s mother, Ms J Vadisanis, is an intervener in the proceedings (“the intervener”).
The intervener asserts that the husband and wife are indebted to her either by reason of loans made by her or by reason of their holding monies to her use.
The husband appears to accept the intervener’s assertions. The wife claims that neither she nor the husband is indebted to the intervener on either basis.
The Court is faced with the task of determining the net property of the parties or either of them available for distribution between them and, in the exercise of its discretion and upon consideration of those matters relevant under the Family Law Act 1975 (the Act), whether and, if so, what alteration to their property interests should take place to create a result that is just and equitable.
The husband and wife have two children together. The Court also has to determine what orders should be made so that the interests of the children, in whose favour a trust of property was settled by the intervener and her late husband, are protected.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1940, the intervener was born. She is now 72 years of age.
In 1968, the wife was born. She is now 44 years of age.
In 1971, the husband was born. He is now 41 years of age.
In March 1995, the husband and the intervener purchased the property at Unit 1, … Q Street, Suburb U (“the first Suburb U property”) for $190,500. The intervener asserts that the property was purchased in April 1995.
In order to finance the first Suburb U property acquisition, the husband obtained a loan from St George Bank for $140,000. The intervener asserts that she contributed $50,000 towards the purchase price and provided security for the loan. The intervener’s contribution exceeded 26 per centum of the purchase price, however, her share on the title was reflected as 5 per centum as tenant in common with the husband. The husband’s share on the title was accordingly reflected as 95 per centum as tenant in common with the intervener.
It is argued by the wife that the intervener’s claim to the first Suburb U property should not be given a value which represents her contribution to the purchase price, but rather it should not exceed her percentage share as reflected on the title to the property.
The husband states that he rented out the first Suburb U property for $250 per week for approximately one year. The husband moved into the unit for a short period of time and then moved back to live with his parents. The husband states that he paid any additional expenses for the unit, such as strata fees, from his wages.
In around November or December 1996, the husband and wife became engaged and commenced cohabitation. The husband deposes that they lived at his parents’ home rent free and did not make contributions to the household expenses. The husband states that he and the wife lived with his parents for at least six months, while the wife states that they lived there for four months.
In February 1997, the husband and wife married.
In 1997, shortly after the husband and wife married, the husband sold the first Suburb U property for $250,000. The net proceeds of sale after discharge of the mortgage with St George Bank amounted to $110,000.
In June 1997, the husband and wife purchased a property at Z Street, Suburb S (“the Suburb S”) for $282,000, utilising the sale proceeds from the first Suburb U property to partly fund the purchase.
On 6 June 1997, the husband and wife executed a mortgage document in favour of the intervener and her late husband for a principal sum of $65,000, plus interest at 10 per centum per annum (“the Loan”). The principal sum, or so much of it as remained unpaid, together with interest was repayable at the expiration of three months’ notice by the mortgagees to the mortgagors.
It is the evidence of the intervener that the mortgage was prepared and acted on by Mr Nicholas Coombes (“Mr Coombes”), the then family solicitor of the intervener. In his evidence, Mr Coombes said that he explained the mortgage document to the husband and the wife prior to them signing it. The Court accepts this evidence. The wife’s evidence is that she recalls visiting the office of Mr Coombes and signing a document; however, she says that she cannot remember the nature or contents of the document.
In 1997, the husband asserts that he carried out renovations to the Suburb S property with the help of his father. The renovations were funded by joint savings of the husband and wife in the amount of approximately $80,000. The husband asserts that his father also contributed money to the cost of the renovations.
In March 1998, the child M was born. She is now 14 years of age.
In June 1999, the child R was born. He is now 13 years of age.
In October 2000, the husband asserts that he and the wife sold the Suburb S property for $455,000. They discharged the mortgage to St George Bank and made arrangements for bridging finance to purchase the property at Unit 2, … Q Street, Suburb U (“the second Suburb U property”), which they bought for $400,000.
The husband and wife used some of their equity in the Suburb S property together with a loan of approximately $220,000 to fund the purchase of the second Suburb U property.
In addition to the above, in late 2000 the husband and the wife paid some of the net proceeds of sale of the Suburb S property to the wife’s employer, Mr T, whom they believed was going to invest the money for them with a 30 per centum return. The husband’s evidence is that this venture with Mr T was unsuccessful and that he and the wife lost a substantial amount of the money that was invested.

In or around January 2001, the husband asserts that his parents gifted $30,000 to each of M and R (together, “the children”). According to the husband, his late father said to the children:
I am giving each of you $30,000.00 so your father can buy you a block of land and you will always remember that this is from your [grandfather].
The money gifted to the children was used to assist in the purchase of two properties at Property 1 and Property 2, X Street, Town D (“the X Street properties”), for $46,000 and $54,000 respectively.
The X Street properties were purchased in the joint names of the husband and wife. In addition to the $60,000 gifted from the husband’s parents, the husband and wife borrowed a further $150,000 from the St George Bank redraw facility over the second Suburb U property and used some of those funds to purchase the X Street properties.
In March 2003, the husband and wife purchased a property at

HH Street
, Town D (“the HH Street property”) for $346,000. They used part of the funds redrawn from the St George Bank redraw facility for this purchase.
In March 2003, the husband and wife moved from Sydney to Town D.
In September 2003, the intervener’s husband received a compensation payment of $220,200 from the compensation Tribunal. This was deposited into a joint account that he held with the intervener.
On 17 October 2003, the husband asserts that the intervener deposited $120,000 of the funds received from the September 2003 compensation payment into his bank account.
On 21 October 2003, the intervener’s husband died. The intervener was the sole beneficiary of his estate.
At some time in 2003, the husband asserts that the intervener sold a property that she owned in Europe.
In or around April 2004, the intervener asserts the she received a second compensation award of $182,000 in respect of a claim in the compensation Tribunal.
In May 2004, the intervener asserts that $50,000 of the compensation payment that she received in April 2004 was transferred to the husband and wife by the compensation Board (“the Award Monies”).
With respect to the Award Monies, the husband in his affidavit filed on

23 December 2011 stated that $50,000 of the compensation payment was deposited into the husband and wife’s joint account, but that he does not recall how the transfer came about. A St George Bank passbook for an account held in the name of “[Mr & Ms I Vadisanis]” was tendered by the intervener at the hearing (this became Exhibit 19). This passbook shows that, on 12 May 2004, an amount of $50,000 was deposited into this account with the reference “Workers Comp. BD”.
The wife was questioned on the Award Monies during cross-examination. While she admitted that a deposit of $50,000 was made into an account in the name of “[Mr & Ms I Vadisanis]” on 12 May 2004, her evidence was that she knew nothing about it.
In mid to late 2004, the intervener asserts that she advanced $100,000 to the husband in the form of cash which she held in a sack at her home (“the O Street Loan”). On the intervener’s evidence, this money was a loan and it was used by the husband to assist in the purchase of a property at O Street, Town E (“the O Street property”).
With respect to the O Street Loan, the wife gave evidence during cross-examination that she recalls being told by the husband that he received this money from his mother, but her understanding was that it was a gift which both the husband and his sister, Ms JJ, received. The husband’s evidence in cross-examination was that he received the $100,000 at his mother’s home “perhaps up to two to three months before the purchase [of the O Street property]” and that it was not a gift.
In October 2004, the O Street property was purchased in the husband’s sole name for $100,000 inclusive of stamp duty and legal fees. No accounting is made by the husband for the additional $50,000 that was provided from the Award Monies and said by the husband and the intervener to be applied to the purchase of the O Street property.
In or around 2004, the intervener sold a property in Europe. On the evidence of the husband and the intervener, it was agreed that funds realised from the proceeds of this sale (“the European Funds”) would be transferred into the joint account of the husband and wife so that the intervener could continue to receive her pension in Australia.
With respect to the European Funds, the parties dispute how much the quantum was and when the money was transferred. They claim as follows:
a)the husband claims that a total of $74,000 was received by the husband and wife at some time in 2004 after the sale of the property in Europe. He claims that he and the wife promised to repay the intervener.
b)the intervener claims that she transferred to the husband and wife a total of $74,000 in October and November 2004 through a series of international transfers conducted by her niece, Ms KK, who was in Europe. She claims that the husband and wife promised to repay her upon her return to Australia.
c)the wife claims that the husband told her that the sale proceeds from the property in Europe would be split three ways between the intervener, the husband and the husband’s sister, Ms JJ, with them each to receive $24,000. She admits that the husband informed her that he had received a sum of money from the intervener, however she denies that this was a loan and that she made any promise to repay the intervener.
In June 2005, the husband and wife sold the HH Street property for $350,000. The husband states that they paid $250,000 to St George Bank to discharge the mortgage and received a net amount of $100,000.
In July 2005, the husband and wife purchased the property at W Street, Town E (“the W Street property”) for $317,000. To assist in the purchase of this property, the husband states that they borrowed approximately $185,000 from the St George Bank redraw facility over the second Suburb U property and used $100,000 of the sale proceeds from the HH Street property.
In August 2005, the husband and wife sold Property 1, X Street, Town D for $56,750. The husband states that the proceeds were deposited into the St George Bank home loan.
In early 2007, the husband sold the O Street property for $85,000. The net proceeds of sale were $80,000. The husband states that this money was put towards reduction of the mortgage over the W Street property, renovations to the W Street property, a Jaguar motor vehicle for $25,000 and a Mercedes Benz motor vehicle for the wife for $20,000. The wife’s old car was traded in for $5,000, funds which were used to assist in the purchase of the Mercedes Benz.

In late 2007, the wife obtained a degree in healthcare and commenced full-time employment.
On 21 December 2007, Property 2, X Street was sold for $105,000 unencumbered. The sale proceeds were put towards the mortgage over the W Street property.
In September 2008 the husband and wife separated.
On 1 October 2008, the wife asserts that the husband withdrew a total of $114,000 from their St George loan account No … (“Loan Account No. 2”) and $18,000 from their St George loan account No … (“Loan Account No. 1”). During cross-examination, the husband conceded that he withdrew funds, which totalled $132,000.
In October 2008, the husband and wife entered into a parenting agreement whereby the children were to live with the husband and spend time with the wife each alternate weekend from Friday evening to Sunday evening, each school holiday period, on shared birthdays and on special occasions. The husband relocated from Town E to Sydney with the children.
On 30 October 2008, the husband filed an Initiating Application.
On 20 January 2009, the wife asserts that the husband’s solicitors wrote to her advising that the husband intended to repay $45,000 to the intervener.
On 29 January 2009, the wife filed a Response to Initiating Application.
On 5 February 2009, the Court ordered the husband to pay back $60,000 of the monies that he withdrew post separation into one of the St George loan accounts from which he had withdrawn money in October 2008. The husband was also ordered to pay $10,000 to the wife’s legal representatives, with the characterisation of such payment to be determined by the trial judge.
On 23 December 2009, final parenting orders were made following a contested hearing. The orders provided that the children would live with the wife in Town E and spend time with the husband at other times, initially at the Town E Contact Centre, with such contact to be supervised. The orders included a proviso for the husband to carry out certain steps with respect to therapy prior to him having weekend and holiday time with the children.
The Court is informed that the father has undertaken all of the required therapy pursuant to the December 2009 orders. The Court is informed that the husband spent time with the children in April 2012 for the Easter period, and notes that the Orders of December 2009 continue to apply for any further contact between the husband and the children.
In February 2010, St George Bank advised of its intention to exercise power of sale over the second Suburb U property after the husband defaulted on the loan repayments over the property.
On 3 March 2010, the intervener filed a Notice of Intervention.
On 22 March 2010, the wife filed an Application in a Case seeking orders that the Second Suburb U property be sold. This application came before the Court on 13 April 2010 and was adjourned to 4 May 2010.
On 29 April 2010, the intervener sent letters to the solicitors for the husband and wife demanding repayment within 14 days of $451,397.63, that sum comprising:
a)$224,397.63 for the principal amount of the Loan plus interest calculated at 10 per centum per annum
b)$150,000 for the monies lent “on or about December 2004” and
c)$77,000 for the monies lent “on or about May/June”.

On 30 April 2010, the Court granted leave to the intervener to intervene in the proceedings.
On 8 July 2010, the husband and wife sold the second Suburb U property pursuant to orders of this Court. The sale price realised at auction was $880,000 and the mortgage over the property was $548,893.10. Following settlement, the mortgage was discharged and the balance of the sale proceeds was directed to a controlled monies account.
On 6 June 2011, the Court made orders for the release of funds to the parties from the controlled monies account by way of partial property settlement. The wife received $55,000 and the husband received $25,000, with such payments to be characterised by the trial judge at the final hearing.

The Evidence

The husband relied upon the following material:
a)Affidavit of the husband filed 12 December 2011
b)Financial Statement of the husband filed 13 February 2012
c)Financial Questionnaire of the husband filed 1 April 2011
d)Minute of Orders filed with Case Outline on 20 February 2012.
The wife relied upon the following material:
a)Wife’s Response to Initiating Application filed 28 January 2009
b)Affidavit of the wife sworn 23 December 2011
c)Financial Statement of the wife sworn 23 December 2011
d)wife’s Response to Intervener’s Points of Claim dated 31 March 2011 and filed 1 April 2011
e)
wife’s Response to Intervener’s Amended Points of Claim filed

20 February 2012.
The wife also sought to rely upon the affidavit of the maternal grandmother sworn on 17 February and e-filed on the same day. Leave was granted to rely on the affidavit, subject to the condition that in a timely way source material supporting the assertions in the affidavit was to be provided to Counsel for the husband and the intervener, and a final decision on that document and the evidence was to depend upon that.

The intervener relied upon the following material:
a)intervener’s Amended Points of Claim filed 23 December 2011
b)Affidavit of the intervener filed 10 January 2012
c)Affidavit of the intervener filed 15 December 2011
d)Affidavit of Ms KK filed 1 February 2012
e)Affidavit of Nicholas Coombes filed 22 February 2012.
Ms KK was not required for cross-examination.

The Orders Sought

The husband seeks the following orders, as stated in his Case Outline:
(1)A declaration that the sum of $10,000 received by the wife pursuant to orders of 4 February 2009 be deemed to be a partial property settlement in the wife’s favour.
(2)An order that the parties forthwith upon default do all acts and things and execute all documents necessary to sell the home at [W Street] on such terms and with an agent agreed upon by the parties within 14 days of the date of this order and failing agreement then with such agent as the President of the Real Estate Institute of New South Wales shall nominate and such agent shall determine the method and terms of sale including sale price.
(3)An order that upon completion of the sale of the home the proceeds of sale shall be distributed in the following order and priority:
i.    in payment of agent’s commission and conveyancing costs;
ii.     in adjustment of statutory charges;
iii.   in payment of the balance in accordance with the following.
A. In the event that the Court makes orders and declarations in respect of the whole of paragraph 42 of the Intervenor’s Amended Points of Claim:
(4)An order that the whole of the monies held by Vizone Ruggero (“the controlled monies”) be paid forthwith to the Intervenor.
(5)An order that the sum referred to in order 3.iii above be paid:
a) as to such sum as is found to be owing to the Intervenor; and
b) as to the remainder in equal proportions to the husband and the wife.
B. In the event that the Court makes orders and declarations in respect of paragraphs 42.1 and 42.4 of the Intervenor’s Amended Points of Claim:
(6)An order that the sum referred to in order 3.iii above be paid:
a) as to such sum as is found to be owing to the Intervenor; and
b) as to 35% of the remainder to the wife; and
c) as to the balance to the husband.
C. In the event that the Court makes orders and declarations in respect of paragraph 42.1 of the Intervenor’s Amended Points of Claim:
(7)An order that the sum referred to in order 3.iii above be paid:
a) as to such sum as is found to be owing to the Intervenor; and
b) as to 30% of the remainder to the wife; and
c) as to the balance to the husband.
D. In the event that the Court makes orders and declarations in respect of paragraph 42.1 of the Intervenor’s Amended Points of Claim:
(8)An order that the sum referred to in order 3.iii above be paid:
a) as to such sum as is found to be owing to the Intervenor; and
b) as to 25% of the remainder to the wife; and
c) as to the balance to the husband.
Generally
(9)Declare that otherwise each party is the sole and beneficial owner of all other items of property in their respective possession custody or control including but not limited to superannuation entitlements.
(10)That in the event that either party shall fail, neglect or refuse to execute any deed, instrument or document to give validity and effect to these orders then upon the other party filing an affidavit setting out such failure, neglect or refusal then a Registrar or a Deputy Registrar of the Sydney Registry of the Court is hereby appointed pursuant to section 106A of the Family Law Act to execute any such deed, instrument or document in the name of the party who defaults and to do all things necessary to give validity to the operation of the deed, instrument or document.
(11)That the parties have liberty to apply on 7 days notice in respect of the implementation of these orders.
(12)That the wife pay the husband’s costs of and incidental to these proceedings.
The wife seeks the following orders, as stated in her Case Outline:
1.The parties forthwith do all acts and things necessary to transfer to the Wife the property at [W Street].
2.The parties do all acts and things necessary to pay the balance of the sale proceeds of the property at [the second Suburb U property] as follows:
2.1 As to the Wife $69,582.00.
2.2 As to the balance to the Husband.
3.The Husband do all acts and things necessary to transfer the registration of the […] Mercedes Benz motor vehicle to the Wife.
4.The Wife be declared sole and beneficial owner of:-
4.1 Shares in her possession and control.
4.2 Household contents.
5.The Husband be declared sole and beneficial owner of:-
5.1 […] Jaguar [motor vehicle].
5.1 Household contents in his possession.
5.3 Diamond ring in his possession.
5.4 Property in [Europe].
6.The claim of the Intervener be dismissed.

The intervener seeks the following orders, as per paragraph 42 of her Amended Points of Claim filed on 23 December 2011:
42.1A declaration that the Applicant Husband and the Respondent Wife are indebted to the Intervener for the Loan in the sum of $65,000 plus interest due under the Mortgage as at 6 June 2010 being a total of $224,397.63.
42.2A declaration that in respect of the amount due under the Loan there is a constructive, implied or resulting trust in favour of the Intervener over the Second [Suburb U] Property.
42.3In the alternative to paragraph 42.2 above, a declaration that in respect of the amount due under the Loan there is a charge in favour of the Intervener over the Second [Suburb U] Property.
42.4A declaration that the Applicant Husband and the Respondent Wife are indebted to the Intervener in the sum of $74,000 in respect of the [European] funds.
42.5A declaration that the Applicant Husband and the Respondent Wife are indebted to the Intervener in the sum of $150,000 in respect of the [Town E] Loan and the Award Monies.
42.6A declaration that in respect of the amounts due to the Intervener pursuant to paragraphs 42.4 and 42.5 above there is a constructive, implied or resulting trust in favour of the Intervener over the Second [Town E] Property, or in respect of the Award Monies, over the Matrimonial Estate.
42.7In the alternative to paragraph 42.6 above, a declaration that in respect of the [European] funds and the amount due under the [Town E] Loan there is a charge in favour of the Intervener over the Second [Town E] Property.
42.8An order that the Applicant Husband and the Respondent Wife pay to the Intervener the sums referred to in paragraphs 42.1, 42.4 and 42.5 above together with any interest and or costs within 28 days from the date of these orders.
42.9In the event that the Applicant Husband and the Respondent Wife fail to comply with the order sought in paragraph 42.8 above, an order that both the Second [Suburb U] Property and the Second [Town E] Property be sold and after payment of any mortgages and proper expenses, the Intervener be paid any and all sums due to her pursuant to the orders sought herein, with any balance remaining thereafter to be paid to the Applicant Husband and Respondent Wife in the manner this Honourable Court deems appropriate.
42.10An order that the Intervener is entitled to interest pursuant to section 117B of the Family Law Act, 1975 (Cth) on any sums ordered by this Honourable Court to be paid by the Applicant Husband and the Respondent Wife to the Intervener.
42.11An order that the Intervener’s costs of and incidental to these proceedings be paid on an indemnity basis.
42.12An order that in the event that either the Applicant Husband and or the Respondent Wife refuse or neglect to execute any deed or instrument necessary to give effect to all or any of the orders made herein the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the said deed or instrument at the cost of the defaulting party.
42.13Such further orders as this Honourable Court deems fit.

The wife filed a Response to the Intervener’s Amended Points of Claim on

20 February 2012 and seeks that the intervener’s application be dismissed.

Credit

The wife was cautioned to not argue and debate with Counsel during her cross-examination and was non-responsive in the giving of some of her evidence.
It is submitted by the husband that the wife was a particularly poor witness, who did not take the proceedings seriously and who gave many smart and smug answers. The husband also submits that the wife was unresponsive, dismissive, flippant and dishonest.
The wife submits that, in assessing the evidence of the husband and the intervener and their allegations with respect to monies, it is clear that parts of the evidence referred to are demonstrably untrue. She submits that this is particularly so with respect to the European funds and the asserted loan of $45,000 to purchase the W Street property.
The wife submits that, in circumstances where there is conflict as to evidence between the parties, the Court would accept the wife’s evidence over the husband’s evidence.
The Court finds that, as between the husband and the wife, neither was a perfect witness. The decisions of the Court will demonstrate whose evidence is accepted on particular issues.

The Issues

What is the property of the parties to the marriage or either of them?
Is it just and equitable to make an order which alters the property interests of the parties to the marriage?
What is a just and equitable re-distribution of that property, having regard to the contributions made by each of the parties as described in s 79 of the Act?
Given the assets of the parties to the marriage or either of them, what, if any, is an appropriate alteration to their property interests which will do justice as between them, having regard to the matters required to be taken into account under s 75(2) of the Act?
What, overall, is a just and equitable distribution of property between the parties to the marriage?
What orders, if any, must the Court make to do justice to the intervener and her claims?
What orders should be made so that the interests of the children, in whose favour a trust of property was created by the intervener, are protected?

Property Matters

The first step I must undertake is to identify the property of the parties to the marriage or either of them available for division between them.

The Balance Sheet

The Court at the commencement of the hearing was provided with the joint balance sheet set out hereunder for its consideration.

Ownership	Description	Wife’s Value	Husband’s Value
ASSETS
1. Joint	[W Street]	400,000.00	400,000.00
2. Joint	Sale proceeds of [the second Suburb U property]	231,648.01	231,648.01
3. Joint	[Mercedes motor vehicle]	10,000.00	10,000.00
4. Husband	[Jaguar motor vehicle]	25,000.00	25,000.00
5. Husband	Household contents	10,000.00	10,000.00
6. Wife	Shares	6,018.00	6,018.00
7. Wife	Household contents	3,000.00	3,000.00
8. Husband	Diamond ring (in husband’s possession)	12,000.00	1,000.00
9. Husband	Property in [Europe]	NK	NIL
Total assets		$697,666.01	$686,666.01
ADD BACKS
10. Husband	Money withdrawn by the husband from joint account unaccounted for	122,000.00	NIL
11. Husband	Rent from [the second Suburb U property]	NK	NIL
12. Husband	Interim distribution pursuant to Orders of 6 June 2011	25,000.00	25,000.00
13. Wife	Interim distribution pursuant to Orders of 6 June 2011	55,000.00	55,000.00
14. Wife	Interim distribution pursuant to Orders of 4 February 2009	10,000.00	10,000.00
Total add backs		$212,000.00	$90,000.00
LIABILITIES
15. Wife	Credit Card	46,650.00	NIL
16. Wife	Loan from parents	46,000.00	NK
17. Wife	Legal costs unpaid	149,563.00	NIL
18. Wife	Flexirent	2,249.00	NK
19. Wife	Centrelink	889.00	NK
20. Joint	Claim by [intervener]	NIL	451,397.63
Total liabilities		$245,351.00	$451,397.63

SUPERANNUATION
21. Husband	[Super 1] (accumulation interest)	NK	31,000.00
22. Wife	[Super 2] (accumulation interest)	5,105.00	5,105.00
23. Wife	[Super 3] (accumulation interest)	3,525.00	3,525.00
24. Wife	[Super 4] (accumulation interest)	17,400.00	17,400.00
25. Wife	[Super 5]	4,335.00	4,335.00
26. Husband	[Super 6]	NK	NIL
27. Husband	[Super 7]	NK	NIL
Total		$30,365.00	$61,365.00
Total net assets incl. superannuation and add backs		$694,680.01	$386,633.38
Total net assets incl. superannuation		$482,680.01	$296,633.38

There are a number of discrepancies on the balance sheet which the Court will deal with below.
With respect to Item 8, the husband gave evidence that he retained the diamond ring at the time of separation and that he subsequently sold the ring for $1,000. It was accepted as an agreed fact that the diamond ring was sold for $1,000.
With respect to Item 10, the wife’s evidence is that in early October 2008 she became aware that the husband had withdrawn $132,000 from the husband and wife’s joint loan accounts. The husband conceded that he had made these withdrawals during cross-examination. The husband also gave evidence that he applied these funds as follows:
a)$45,000 was repaid to the intervener
b)$10,000 was paid to the solicitors for the wife (pursuant to Court orders of 5 February 2009)
c)$60,000 was paid back into one of the joint loan accounts (pursuant to Court orders of 5 February 2009).
On the husband’s evidence, this would leave a balance of $17,000 in unaccounted for funds. The wife submits that the balance of the monies withdrawn by the husband at separation is $62,000 (presumably this calculation does not include the repayment of $45,000 to the intervener).
The Court accepts the husband’s evidence that he repaid to the intervener $45,000 and finds that the unaccounted for balance of the funds withdrawn by the husband post separation is $17,000. Given the absence of explanation by the husband, this amount will be added back and treated as a partial property settlement to the husband. With respect to the $45,000 repaid to the intervener, this amount will be deducted from any amount ultimately found to be owing to her.
With respect to Items 12 to 14, these were monies paid to the husband and wife pursuant to Court orders. On 5 February 2009, the husband was ordered to pay $10,000 to the solicitors for the wife. On 6 June 2011, the wife received a further payment of $55,000 and the husband received $25,000.

The wife gave evidence that, of the $55,000 she received on 6 June 2011, she paid $15,000 towards her legal costs, which was evidenced by a tax invoice from her legal representatives dated 7 February 2012 (this became Exhibit 26). The wife asserts that she used the remaining $40,000 to pay for bills, together with the children’s school fees, clothing, school trips, shoes, games, a piano keyboard and replacement of the children’s toys.
The Court intends to include as add backs the funds paid to the solicitors for the wife in February 2009 and the funds paid to the husband on 6 June 2011. These will be characterised as partial property settlements in favour of the wife and husband respectively.
Of the $55,000 paid to the wife on 6 June 2011, only the $15,000 paid by the wife to her solicitors will be included as a partial property settlement on the wife. As to the balance of $40,000, the evidence before the Court is that this was spent on maintenance needs for the wife and children and accordingly the Court will characterise such funds as an interim maintenance payment to the wife.
With respect to Items 15 to 19, the husband submits that the liabilities listed in his column as “nil” or “not known” means that they exist but that they should not be included on the balance sheet as a joint liability. The wife accepts that the liabilities in her name have accrued since separation. She seeks that these borrowings be taken into account in the context of her post separation contributions given that the husband has failed to provide financial support and has maintained these proceedings, requiring the wife to expend significant monies on legal fees. These liabilities of the wife will not be included on the balance sheet but will be taken into account in the Court’s consideration of

s 75(2) matters, specifically s 75(2)(o).
With respect to Item 20, this liability refers to the funds said by the husband to be owing to the intervener. The husband in his evidence provides more than one figure for this asserted liability; his written submissions state the liability as $448,397, which accords with the amount asserted by the intervener. The intervener in her Amended Points of Claim filed on 23 December 2011 seeks declarations that the husband and wife owe to her:
a)$65,000 plus interest at 10 per centum per annum for the Loan. The intervener has calculated the amount owing under the Loan based on interest accruing until 6 June 2010, which produces a liability of $224,397.63
b)$74,000 for the European Funds
c)$150,000 for the O Street Loan and the Award Monies.
In total, the intervener claims that the husband and wife owe her the sum of (a) to (c) above, which is $448,397.63. The Court’s findings with respect to the funds said by the husband and the intervener to be owing to the intervener are discussed below.
With respect to Item 21, the Husband’s Super 1 amount, the husband’s entry of $31,000 is accepted by the Court.

The first Suburb U property

The evidence before the Court is that the husband and the intervener were reflected on the title of the first Suburb U property as tenants in common with a 95 per centum share to the husband and a 5 per centum share to the intervener.
The intervener contends that, in addition to her 5 per centum legal interest reflected on title of the first Suburb U property, she has an equitable interest in the property of 21 per centum by reason of a resulting, implied or constructive trust arising from the advancement of $50,000 by the intervener and her late husband towards the purchase price.
The wife submits that with respect to the $50,000 advanced by the intervener and her late husband for the purchase price, the intervener’s evidence uses the word “contribute” in relation to these funds and that there was no mortgage document or any writing confirming that it was a loan. The wife does not agree that the purchase price was secured by way of mortgage over the first Suburb U property. She also disputes that the intervener and her late husband provided collateral security as alleged.
The wife during cross-examination admitted that she was now aware that the intervener paid $50,000 towards the purchase price of the first Suburb U property and that, upon its sale, the intervener agreed to that money being rolled over into the purchase of the Suburb S property.
The wife agreed when she and the husband purchased the Suburb S property, she was aware that the intervener had not been paid money that she was owed out of the sale of the first Suburb U property.
The Court accepts that the parties involved in the transaction agreed as was indicated by the intervener and the husband.

The Suburb S property and the Loan

The intervener contends that on or about 6 June 1997 she loaned to the husband and the wife the sum of $65,000 (“the Loan”), which came from the intervener’s share of the sale proceeds of the first Suburb U property. The intervener asserts that the husband and wife applied the Loan towards the purchase price of the Suburb S property.
The intervener claims that the Loan was secured by way of mortgage (“the Mortgage”) over the Suburb S property, with the intervener and her late husband as mortgagees and the husband and wife as mortgagors.
The intervener claims that:
a)the Loan and the Mortgage were express
b)the Loan and the Mortgage were in writing
c)the Loan and the Mortgage were executed by the husband and the wife
d)the Mortgage was unregistered.
The intervener states that it was a term and condition of the Loan that the husband and the wife would pay to the intervener interest on the principal sum, or on so much thereof as remained unpaid, at the rate of 10 per centum per annum.
Further, the intervener claims that it was a term and condition of the Loan that the principal and interest due would be repaid to the intervener at the expiration of three months’ notice by the intervener to the husband and the wife. The intervener contends that this term and condition was express and in writing and that it formed part of the Loan and Mortgage documents.
The intervener contends that at the time the Suburb S property was sold, the husband and the wife did not repay the Loan to the intervener. The intervener presently claims that the husband and wife owe her $224,397.63 because of the interest that had accrued on the principal sum of $65,000 as at 6 June 2010

(13 years from the date of the Loan).
The mortgage was never stamped. An inspection of the copy of the mortgage document, annexed and marked “C” to the affidavit of the intervener filed on 15 December 2011, does not evidence any payment of stamp duty as would have been owed at the time under the Stamp Duties Act 1920 (NSW) (“the 1920 Act”). The 1920 Act has been repealed, however, the Duties Act 1997 (NSW) (“the Duties Act”) provides a transitional provision which states that upon the repeal of the 1920 Act any liability to pay duty under the 1920 Act became a liability under the Duties Act.
Given that the mortgage instrument was executed on 6 June 1997 (that is to say, prior to the insertion of s 221B into the Duties Act, which provides an exemption to mortgage duty that otherwise would have been relevant), the Mortgage would have attracted duty.
In the present circumstances, the provisions of the Duties Act which deal with the receipt of “dutiable instruments” into evidence apply to the Mortgage. Section 304(1) of the Duties Act provides that an instrument which effects a “dutiable transaction” may not be presented in evidence by a Court or tribunal of civil jurisdiction unless:
a)it is duly stamped or
b)it is stamped by the Chief Commissioner or in a manner approved by the Chief Commissioner.
Pursuant to s 304(2), an instrument that does not comply with s 304(1) may be admitted by a Court or tribunal if:
a)the instrument is, after its admission, transmitted to the Chief Commissioner in accordance with arrangements approved by the Court or
b)where the person who produces the instrument is not the mortgagor, the name and address of the mortgagor is forwarded, with the instrument, to the Chief Commissioner in accordance with arrangements approved by the Court.
The Court intends to transmit the mortgage document tendered by the intervener to the NSW Chief Commissioner of State Revenue along with the names and addresses of the mortgagors.
The wife asserts that, when the first Suburb U property was sold, the intervener made no claims for the money said to be owing to her. The wife does not admit to receiving either $65,000 from the intervener and her late husband or the benefit of the sum of $65,000.
The wife’s evidence was that it had been brought to her attention in the last twelve months only that she had entered into the Mortgage with the intervener at the time she and the husband purchased the Suburb S property. The wife stated that she could not recall signing the Mortgage in favour of the intervener but agreed that it was her signature on the document.
The wife’s evidence is that she did not receive legal advice as to her obligations contained in the Mortgage. Further, she states that she was advised by the husband that any monies provided by the intervener and her late husband were a gift and, if not a gift, that any loan would be forgiven.
The wife’s evidence was that she never knew the document was called a “mortgage” and that Mr Coombes, who was the legal representative, had not explained the document to her prior to it being executed. The wife did, however, concede that “he probably spoke a little bit about it”.
The wife denied that Mr Coombes told her that she and the husband were borrowing $65,000 from the intervener and that they had to pay interest on that amount at 10 per centum per annum. She also denied that it was explained to her by Mr Coombes that she and the husband had to pay the principal back to the intervener at three months’ notice.
The wife also claims that, after the execution of the Mortgage document, the intervener advised her that there were no monies owing to her and/or her late husband by either of the husband and/or the wife. In this regard, it is submitted by the husband that the Court should not accept the wife as a witness of truth, and that it should prefer to the evidence of the wife the evidence of

Mr Coombes, the husband and the intervener.
The wife denies that at the time the Suburb S property was sold there were monies payable to the intervener. The Court finds that there was a debt which was not immediately payable because repayment had not been demanded at that point in time.
The wife submits that it would seem that the Mortgage was simply a means of “protection” for the husband should the parties’ marriage not succeed. She submits that the Mortgage document was apparently left in the solicitor’s office for 14 years and was “dusted off” and used in the family law dispute between the parties.
The wife submits that there is no explanation as to why, if the husband owed his parents $50,000 from the purchase of the first Suburb U property, the Mortgage document would bear a consideration of $65,000. The wife notes that the sale price of the first Suburb U property was $250,000 and, accordingly, that the intervener and her late husband’s interest (at best of five percent) meant they would have had an entitlement of $12,500.
The wife submits that the first time the intervener made a demand for the monies was after the parties had separated. She also submits that the parties bought and sold not less than three properties and at no time was there a demand for the repayment of the Loan. The wife submits that, as there has been no acknowledgement in writing signed by the parties, there is no enforceable action available to the intervener.
In the alternative, the wife states that the intervener forgave the Loan and that by virtue of ss 14, 36 and 42 of the Limitation Act 1969 (NSW) (“the Limitation Act”) the intervener’s asserted cause of action is extinguished.
The wife also states that the intervener has not rebutted the presumption of advancement with respect to the husband’s interest in the first Suburb U property. The Court finds that contrary to this assertion there was clear evidence presented by the husband and the intervener which rebutted that presumption.
The husband submits that the wife in her evidence states that the $65,000 from the intervener was “not lent” but rather “it was rolled over. It was used as a deposit”. The husband submits that such an answer implies that it was a loan.
The intervener’s evidence is that she and her late husband did not ask for the husband and wife to pay back the monies as they were confident at the time that the husband and wife would pay back the money and they did not expect them to get divorced.
The Court finds on the evidence that the version of events in relation to the Loan is as set out by the husband, the intervener and Mr Coombes, and that the sum claimed to be due under the terms of the Mortgage is due.
The husband and wife therefore have a joint liability to the intervener of $224,397.63, that sum being the amount owing for the principal loan plus interest calculated as accruing until 6 June 2010.

Renovations to the Suburb S property

The intervener’s evidence was that her late husband assisted in carrying out renovations at the Suburb S property. She states that she and her late husband spent $25,000 on these renovations and that this included costs for cement, sand, nails, a cement mixer, insulation in the roof and other works.
It is the husband’s evidence that his late father, who was a tradesman, paid for work related to the renovations, which included all the form work, timbers, pegs, reinforced concrete mesh, the stools that the mesh sits on, the underlining of the concrete, lintels above the windows, tech screws, chip rock lining, agricultural pipe for the retainer walls and some plumbing elbows and taps.
The wife agreed in her evidence that the husband’s father carried out the brick work at the Suburb S property and that he also did the floor work, which included providing the timber. The wife also agreed that the husband’s father carried out the plasterboard lining and that he provided some plumbing pieces. The wife could not recall whether the husband’s father provided the plasterboard, tech screws, cement and/or concrete, agricultural pipes, and lintel above the laundry door and window. She does not agree that the husband’s father provided the skylight.
It is the husband’s evidence that the renovations cost approximately $80,000 and that his parent’s contributed about $25,000 toward that cost. The wife could not recall how much the renovations cost but she denied that the husband’s parents made a contribution of approximately $25,000.
The Court cannot on the evidence make a finding that the husband’s parents spent $25,000 on the renovations but accepts the evidence that the husband’s father assisted in the renovations.

The second Suburb U property

The intervener contends that the husband and the wife applied the whole of the net proceeds of sale of the Suburb S property of approximately $150,000, which included the funds due to the intervener pursuant to the Loan and Mortgage, toward the purchase of the second Suburb U property. The intervener claims that this gives rise to a resulting, implied or constructive trust or a charge in her favour in respect of the second Suburb U property or a portion thereof.
The intervener also claims that the husband and the wife have acknowledged and affirmed their indebtedness to the intervener pursuant to the Loan by representing to the intervener, both prior to and following the sale of the Suburb S property, that they would repay the loan.
The wife admits that some of the sale proceeds of the Suburb S property were paid towards the purchase of the second Suburb U property, however she denies that there is any trust in favour of the intervener.
In the alternative, the wife states:
a)there is no basis upon which the intervener can assert a trust arising from a simple debt
b)
in the alternative, if a trust was found to exist, as asserted by the intervener, any entitlements to that trust are extinguished by virtue of

s 36 of the Limitation Act
c)the intervener is disbarred from enforcing her rights by reason of confirmation, estoppel, acquiescence and/or laches.
It is the husband’s evidence that the unit was renovated and converted from a two-bedroom unit into a three-storey, three-bedroom unit with a study, two bathrooms and an outdoor courtyard. It was his evidence that he was assisted by his father and Mr T.
The property was purchased on 10 July 2000 for $400,000 and was subsequently sold on 18 August 2010 for $880,000.
The wife denies that it was the husband’s idea to renovate the unit and stated that the plans for the renovation had already been lodged with the Council by the previous owner. However, the wife conceded in her evidence that there was a significant profit made on the sale of this property and that to her own knowledge that was because it had been converted into a bigger property.
It was the husband’s evidence that, whilst the property was being leased post separation, he received the rents and disbursed expenses, including strata levies, Council rates, water rates and mortgage instalments.
In about July 2009, after the tenants gave notice to vacate, the husband moved into the property with the children.
The husband conceded that he did not always make the mortgage payments and that he received correspondence through his solicitors from the wife’s solicitors complaining that the mortgage was not being paid. As a result of this, the husband conceded that the property was sold at a mortgagee in possession sale.

The Limitation Argument

It is submitted by the husband that, in applying the money which was rolled over to purchase the Suburb S property, the wife has acknowledged that the Loan continued. He submits that the wife’s answer clearly acknowledges that the mortgage debt continued into the Suburb S property, and that at all times the husband has acknowledged this.
The Court finds that there was a debt which was unsecured at that time, but not repayable at that time, since notice had not been given.
The husband submits that at the time the Suburb S property was sold on

27 October 2000, the principal and interest of the “rolled over” loan was not repaid. It is his submission that the twelve-year limitation period on a deed would run from that time. He submits that the intervener sued within the twelve-year period and there is therefore no question of a limitation defence arising.
The Court finds that there is no limitation period of twelve years with respect to the debt since the Mortgage was not registered and the debt cannot therefore be said to arise under a deed. This was subsequently conceded in the further oral submission made by the husband and the intervener.
The wife submits that the entitlement to monies owing under loans said to have been made by the intervener to the parties are necessarily debts and the cause of action to recover such debts is a cause of action in contract. The wife submits that, by virtue of ss 14 and 63 of the Limitation Act 1969 (NSW), it follows that such actions have a six-year limitation period imposed on them.
The Court agrees that the limitation period applicable to a loan contract is six years.
There was a discussion as to when the relevant limitation period was to start. It was submitted that, having regard to the terms of the Loan and, particularly, the requirement for the expiration of three months’ notice after a demand for repayment before a liability for repayment arose, that the period must commence from the date of the demand.
The Court finds that this is so and respectfully adopts the reasoning of

Fullagar J in the case of Ogilvie and Adams [1981] VR 1041 at [1049] and [1052], as submitted by Counsel for the intervener. Earlier conclusions brought to the attention of the Court by Counsel for the wife are not accepted.

The European Funds

The intervener’s evidence

In or around mid-2004 the intervener received funds from the sale of a property in Europe following the death of her husband.
The intervener claims that in late 2004 she sent monies to the husband and the wife on the condition that such funds would be repaid to the intervener. The intervener claims that she arranged for the European Funds to be transferred to the husband and wife in Australia by her niece, Ms KK, who was in Europe.
It is the intervener’s evidence that she did not receive any benefit from the monies that were derived from the sale of her husband’s property in Europe. She asserts that the husband and wife took the money and that the wife gave her an account number for the account into which the money was deposited.
The intervener asserts that the husband and wife applied the European Funds in reduction of their mortgage secured over the HH Street property. The intervener also contends that the husband and wife applied the European Funds towards the purchase of the O Street property.
It is the intervener’s claim that the husband and wife used the European Funds in the above manner without her authority, knowledge or consent and in breach of their promise to the intervener, thereby giving rise to a resulting, implied or constructive trust in her favour in respect of the HH Street property and/or the O Street property, or a portion thereof, to the extent of the funds entrusted to them. The Court will not infer any such trust.
In the alternative, the intervener asserts that the husband and wife remain indebted to the intervener in respect of the European Funds. The Court, for reasons set out below and having regard to the evidence that the husband was entitled to part of those funds by way of his inheritance, does not so find.

The husband’s evidence

It is the husband’s submission that he received $74,000, albeit that he was only entitled to approximately one-third of that sum, and that, in effect, these monies were used for matrimonial purposes. He submits that the Court should find that the parties had the benefit of this money and that the wife at all material times knew this to be the case.
The husband’s evidence was that the intervener and her late husband appointed Ms KK to manage their affairs in Europe. He recalled that there were documents that came from Europe in three different names: the intervener’s first name, the husband’s first name and the first name LL. The husband asserts that he had to open an account in his name for the monies from Europe to be deposited into, and that the monies were deposited into this account. The husband also recalled that a portion of the money went into another account. He indicated that he was not sure that the account had been in his daughter’s name but that he had seen a St George Bank document with the name “[the intervener’s first name]” on it and that his daughter’s name is actually “[M]”. It was the husband’s evidence that he had never opened an account with St George Bank for his daughter.
It was suggested to the husband by Counsel for that wife that on 23 November 2004 a foreign cheque deposit of $24,117.36 was made into an account in the daughter’s name. A statement from the account of “[Miss M Vadisanis]” ending in “502” for the period 25 October 2004 to 24 April 2005 demonstrating this foreign cheque deposit was tendered and became Exhibit 12.
The husband’s evidence was that this account is held in the name of

“[Miss M. Vadisanis]” and that the account to which the European Funds were received was held in the name of “[the intervener’s first name]”. The husband deposed that the account was opened up by the wife for their daughter and that another account was opened up for himself and their son.
The husband further deposed that, because of the difficulty in transferring the money to Australia, the wife suggested that she temporarily open up an account in which to house the money from Europe. That account was subsequently closed some months later. The husband’s evidence was that he is not aware how or what came about to get the account name changed to “[the intervener’s first name]” and that, as far as he knew, his mother had always banked with the Commonwealth Bank and had never been a customer of St George Bank.

The wife’s evidence

The wife admits that she was informed by the husband that the intervener had received a parcel of monies, however, she claims that she was not informed as to the quantum of the monies by either the husband or the intervener. She also denies making any promise to the intervener in relation to these funds and denies informing the intervener that the funds had been applied to the mortgage secured over the HH Street property.
The wife submits that the intervener's affidavit makes no reference to significant facts, those being:
a)that the beneficiaries of the monies were:
i)the intervener
ii)the husband
iii)the husband’s sister Ms JJ
iv)two cheques were forwarded from Europe, each in the names of a beneficiary, and a cheque forwarded from Europe in the name of a third beneficiary.
b)in accordance with the law in that European country, upon the death of the intervener’s husband the beneficiaries were the intervener, the husband and his sister Ms JJ. This appeared to be a conceded position.
c)the clear import of the intervener’s affidavit was that she was solely entitled to those monies.
d)the husband’s sister Ms JJ was not on affidavit nor called as a witness. The intervener gave no evidence as to how she had standing to give away Ms JJ’s money and then have a legal right to require the husband and the wife to pay Ms JJ’s money to the intervener.
e)the apparent entitlement of Ms JJ to the monies by itself raises questions as to the assertion by the intervener that there were conversations relating to her pension when two-thirds of the monies that she was concerned about were not even hers.
f)the husband was aware that two-thirds of the monies were not the intervener’s. The husband however maintained a position that he owed his one-third of the European monies to his mother notwithstanding the fact that he was beneficially entitled to them.
The wife concedes that one-third of the monies received from Europe (approximately $24,000) was received and expended by the parties. The wife submits that this portion of the monies was the husband’s entitlement from his father’s estate in Europe. Accordingly, she queries why the husband would repay to his mother monies to which he was beneficially entitled.
The wife gave evidence that, in relation to the account for “[Miss M Vadisanis]”, she could not access this account online using her login details. It was her evidence that she called St George Bank in relation to this and was advised that this account did not appear when the wife logged into internet banking as the husband was the sole signatory of the account. A statement from this account ending “502” with handwritten notes of the wife stating:
“[The husband] is signatory so this does not appear on my login. Will appear when [the husband] logs on”
was tendered and became Exhibit 15. The wife told the Court that she would have made this handwritten note in approximately April 2007.
During cross-examination, the wife was questioned in relation to foreign currency payments into certain accounts in 2004.
On 28 October 2004, a foreign currency payment of $24,808.51 was paid into the account of the husband. The wife’s evidence was that she was not aware of this payment at the time.
On 23 November 2004, two foreign cheques for the sum of $24,117.36 were received: one into an account in the daughter’s name and the other into an account ending in “793”, being an account in the husband’s name. The wife conceded that she knew about these transfers.
The wife’s evidence was that the money that came into these accounts was not her money and that, of the three amounts referred to above, one payment was for the intervener, one for the husband and one for the husband’s sister.
Other statements for the account of “[The wife] T/F [the child M]” ending in “258” were tendered and became Exhibit 18; these statements evidenced a change in name on the account. Statements for the periods 26 May 2000 to 30 June 2003, 1 July 2003 to 24 November 2003, 24 November 2003 to 24 May 2004 all showed the name of the account to be “[The wife] T/F [the child M]”. The statement for the period 25 May 2004 to 24 November 2004 showed the account name had changed to “[The wife] T/F [the intervener]”.
It was suggested by the intervener that the wife had changed the name on this account so that she could receive monies from Europe in the name of

the intervener. The wife’s evidence was that she did not know whether she had deliberately changed the name on this account with the express purpose and intention of receiving the money from Europe. She stated that she had obviously been asked to do that.
The wife submits that Exhibit 29, being documents produced on subpoena by St George Bank, disclose that the wife did not become a signatory to the account titled “[the intervener’s name]” until 29 June 2007, and that the documents disclose that the person who opened the account was the husband.
The wife submits that there is so much contradictory evidence in the intervener’s case that the Court would find that the only benefit that she and the husband received from the European Funds was approximately $24,000. She asserts that the intervener and husband have not established that the parties received the benefit of $74,000 and that, in any event, the intervener would not be owed that sum because two-thirds of the European Funds were the entitlement of people other than the intervener.
In the alternative, the wife submits that, if the intervener provided monies to the husband and the wife for the purpose of securing her pension from the Australian Government, the intervener cannot enforce the asserted trust as it is apparent that the alleged payment was made for an illegal purpose. If the Court finds this to be true, it is the wife’s position that this must have implications on the intervener’s beneficial entitlement and the remedy that she seeks via the equitable doctrine of tracing.
In her oral evidence, the wife denied that it was her suggestion that the intervener be given the husband and wife’s account number so that the intervener could transfer to them the European Funds and continue to receive her pension. The wife also denied that she gave to the intervener a handwritten note with the husband and wife’s joint account details. She did, however, accept that a note with the account number written on it (annexed at “E1” to the intervener’s affidavit filed on 15 December 2011) was written in her handwriting.
The Court accepts the assertions of the wife as to the motive underpinning the transfer of the funds as being more probable than not. The intervener, in her affidavit filed on 15 December 2011, provides evidence to indicate that her motive for transferring the European Funds to the husband and wife was to protect her pension. At paragraph 56 of that affidavit, the intervener says that words to the following effect were spoken between herself and the wife in August 2004:
Me [the intervener]: I am going to call [Ms KK] in the morning regarding the money. Where shall I put it? I am concerned that they will cut off my pension.
[The wife]:No worries mum. We will give you our account number.
Me [the intervener]: Yes but you have to pay it back to me.
[The wife]:Don’t worry we will give it back to you.

The Court’s findings

Based on the evidence presented by the wife, the Court finds that the husband and the wife would at most owe to the intervener $24,000, as the husband and his sister were each entitled to receive $24,000 of the European Funds by way of their inheritance to their father’s estate.
As for the funds due to the husband’s sister, this is a matter for her to pursue and she does not do so in these proceedings.
As to the transfer of the remaining funds, the Court finds that the transaction is vitiated by the illegality of the agreement, designed as it was to commit a fraud against the Commonwealth. The intervener has no right to recover unless the Court grants her an equitable remedy; however, equitable remedies are discretionary and, in accordance with the intervener’s own evidence, she was clearly committed to the illegality of the transfer.
The Court concludes that, pursuant to the maxim that “he who comes to equity must come with clean hands”, the intervener is not entitled to any relief in relation to the European Funds. Further, it is the Court’s intention to refer the matter to the appropriate authorities for further investigation.

The O Street Loan and the Award Monies

The O Street Loan

The intervener asserts that in October 2003 she withdrew $33,759.00 from her Commonwealth Bank account. In December 2003 she asserts that she withdrew a further $112,319. The intervener claims that she took this money home on both occasions and placed the cash in a drawer at her home.
The intervener’s evidence was that, in October 2004, she gave the husband a bag of money which had $100,000 in it. She claims that the husband used this money to buy the O Street property. She asserts that this money (“the O Street Loan”) was made by an oral request of the husband and wife.
The wife denies that the husband borrowed this money from the intervener. She also denies that she requested a loan from the intervener and denies being informed of a loan by either the husband or the intervener.
In her oral evidence, the wife asserted that the $100,000 was a gift from the intervener to the husband. She stated that she had no knowledge that this money was to be used for the purchase of the O Street property and that it was to be repaid to the intervener upon the sale of that property.
The wife submits that the husband’s sister, Ms JJ, also received $100,000 at the time that the husband received this money from the intervener. It is the wife’s submission that neither the husband nor the intervener asserted that Ms JJ was required to pay the $100,000 back to the intervener.
The wife submits that the transaction is unusual in that the intervener provided the husband with $100,000 in cash that was contained in a sack in 2004, yet is complaining that she has not been repaid $65,000 from 1997. The wife also submits that there is no writing in relation to the loan of the $100,000 cash, either in the form of acknowledgement and/or the terms of the loan.
The husband submits that the evidence clearly establishes a loan between the intervener and the husband, that the wife was not privy to the loan, and that it exists and is a matrimonial debt. It is submitted by the husband that the intervener became a party to the proceedings on 10 December 2008, which is well within the six-year limitation period.
The intervener did not file a Notice of Intervention until 3 March 2010. This, however, is still within the six-year limitation period.
The Court finds that the sum of $100,000 is owed to the intervener with respect to this loan.

The Award Monies

The intervener amended her points of claim on the third day of the hearing and made an additional claim that, in or around April 2004, an award was made to the intervener in respect of a claim before a compensation tribunal in NSW in the amount of approximately $182,000.
It is the intervener’s contention that on or around 12 May 2004, $50,000 of the Award Monies from the compensation board was transferred directly to the husband and wife’s account without her knowledge or consent. Notwithstanding the intervener’s demand for repayment, these monies have not been returned to the intervener.
The intervener’s evidence is that she was in Europe at the time and that when she came back she found that the husband and wife had taken out $50,000 which went into their account. It is her evidence that the husband did not tell her what he did with this money.
The wife initially denied that she had the use and benefit of this money. She denied that she had transferred $50,000 of the intervener’s compensation monies to the joint account in the names of the husband and wife on 12 May 2004. Her evidence was that she was never authorised by the intervener to receive compensation monies on her behalf.
In her oral evidence the wife deposed that she did not recall having $50,000 transferred into her account. She denied transferring this money into her and the husband’s joint account without the intervener’s knowledge or consent. A Passbook in respect of the husband and wife’s joint account ending in “548” became Exhibit 19. It showed a deposit of $50,000 on 12 May 2004 with the description “Workers Comp. BD”. The wife stated that she had no idea how the $50,000 got into the account or where it came from.
A bank statement of the husband and wife’s St George Portfolio Loan Account ending in “298” for the period 1 May 2004 to 31 May 2004 was tendered and became Exhibit 20. This showed a credit to the account in the amount of $50,000 on 17 May 2004. The wife agreed that the balance of their mortgage was reduced by $50,000 and that she therefore had the financial benefit of those monies.
The wife submits that these monies were a gift. She submits that there is no evidence other than the assertion by the intervener that could possibly bring the Court to a conclusion on the balance of probabilities that that sum of $50,000 is a debt to the husband’s mother.
It was the wife’s evidence that she was not aware that in April 2004 the intervener received an award of compensation from the compensation board. She maintained that, whilst she can see from Exhibits 19 and 20 that the money came into the joint account and was applied to the Portfolio Loan Account, she does not know anything about it.
The wife gave evidence that neither she nor her husband had ever made a worker’s compensation claim to the extent that they would have received $50,000 by the worker’s compensation board.
It is contended by the intervener that the husband and wife applied the O Street Loan and the Award Monies toward the purchase of the O Street property and/or towards renovations to the O Street property, renovations to the HH Street property and/or to renovations to the other property owned by them, including but not limited to the W Street property and/or the X Street properties.
The intervener asserts that it was a term and condition of the O Street Loan that it would be repaid on demand or on the sale of the O Street property. She asserts that the term and condition was express and was oral. In the alternative, she states that the term and condition was implied.
The intervener states that at the time the HH Street property and the O Street property were sold, the husband and wife did not repay the European Funds or the O Street Loan to the intervener.
The wife believes, on the basis of conversations with the husband, that the intervener provided the funds to enable the parties to purchase the O Street property. However, the wife denies that the husband or the wife are liable to or are required to pay monies to the intervener.
It is the husband’s submission that the intervener’s action for recovery of the Award Monies was commenced within the limitation period. He submits that the wife’s own evidence is that these monies were received by the parties, and she cannot deny the monies were loaned.
Exhibit 22, being a statement of account from the husband and wife’s joint Direct Saver account with St George Bank ending in “956” shows that the husband and wife received $77,500 and $4,380 into that account on

10 September 2007. The entry next to those deposits states “Sale of [O.] St” and “Sale of [O] St” respectively.

Representations of trust in respect of the W Street property

It is the intervener’s contention that the husband and wife applied the whole of the net proceeds of the HH Street property, the X Street properties and/or the O Street property towards the purchase of the W Street property, thereby giving rise to a resulting, implied or constructive trust or charge in favour of the intervener in respect of the W Street property, or a portion thereof, arising from the application toward the purchase of the W Street property of the European funds and the funds due to the intervener pursuant to the O Street Loan.

It is the intervener’s evidence that, in April 2004, she received $182,000 from a compensation payment and that, in May 2004, $50,000 of this was transferred into the husband and wife’s bank account.
The wife worked for Company PP, in a clerical role from April 1996 to May 2007.
From May 1997 to March 2003, the wife worked in a clerical role for Company NN and their related entities.
The wife’s evidence is that she returned to work two weeks after she gave birth to their first child, M, in March 1998, and one week after the birth of their second child, R, in June/July 1999. The wife also asserts that, after the birth of their second child, her employer, Mr T, set up a home office so that she could work from home. The wife worked from home for twelve months and then returned to the office.
In 2003, after the husband and wife moved to Town D, the wife commenced studying at university to gain a degree in healthcare. Whilst studying, the wife undertook casual part-time employment with Company TT from April 2003 to April 2004. She also worked in a clerical role for a government department in Town D for twelve months between January 2004 and December 2004.
The wife worked as a healthcare assistant on a casual basis with Town E Hospital from July 2006 to November 2007.
The wife obtained her degree in healthcare and gained accreditation in late 2007. She commenced full-time employment with Town E Hospital in December 2007.
The husband asserts that, whilst the wife was studying for her degree in healthcare, she only worked one day per week whereas he worked on a full-time basis. The husband’s evidence is that he put his earnings towards paying the loan, school fees and living expenses, and towards the renovations to the W Street property. The husband’s evidence is that approximately $101,900 was spent on home improvements to the W Street property between the years 2005 and 2008.
In 2000, the husband was employed in the automotive industry for a period of approximately twelve months. After this employment ceased, he worked as a casual labourer for Mr T for approximately twelve months.
Prior to moving to Town D in 2003, the husband was employed in a clerical role in a healthcare practice.
The wife deposes that, between March 2003 and October 2003, the husband travelled regularly to Sydney to visit his dying father and, that during this period, he worked in hospitality.
In early 2004, the husband commenced employment with a healthcare practice in Town E in a clerical role. He resigned from this position in early 2008 due to a disagreement with one of the practitioners.
The wife deposes that, from early 2008, her income as an accredited healthcare worker supported the family and the rental income from the second Suburb U property covered the mortgage.
It is the husband’s case that the wife was mainly responsible for the family finances and that, when a series of cheque books were tendered at hearing, many cheques were shown to be in the wife’s handwriting. The wife conceded that, in three of the cheque books, the majority of cheque stubs displayed her handwriting; these cheque books became Exhibit 25. Despite this, the wife denied that she was mainly responsible for the family finances and stated that she wrote out these cheques under the husband’s instruction.
In respect of a cheque book for the period May 2007 to August 2008, the wife stated that the cheque stubs were written predominantly in the husband’s handwriting. It was suggested to the wife that it was only at this stage, which was a period leading up to separation, that the husband had more control over the family finances than the wife. The wife agreed, but qualified this by stating that this was because he was not working at the time. In fact, the husband had been working at the healthcare practice for the period May 2007 to April 2008.
The husband also tendered bank statements with the wife’s handwriting on them to indicate that she was the person primarily responsible for their finances (this became Exhibit 21). The wife admitted that the handwriting on the statements in Exhibit 21 was hers. The writing showed that the wife had dissected the interest payment between three different properties. The wife admitted that, together with the husband, she was feeding accounting information to the husband. It is the husband’s submission that this is a significant change in the wife’s evidence when she initially denied having an intimate involvement in the family finances.
Both the husband and the wife shared the responsibilities of caring for and parenting the children. The husband deposes that he assisted in changing their nappies, heating up their milk and food, and washing and folding their clothes. He also asserts that he undertook laundry duties, cleaned the house and cooked meals for the family. The wife agreed that the husband did assist in doing these tasks, but not 100 per centum of the time. She asserts that the husband may have done those things occasionally but certainly not every day.
The wife submits that, other than the husband’s substantial financial contributions from sources outside of the relationship, there is nothing of significance with respect to the parties’ contributions.
In summary, the wife concedes that some payments by the husband’s parents to the parties should be considered as contributions on behalf of the husband. These are as follows:
a)the sum of $60,000 which was gifted to the parties’ children and was used to purchase the X Street properties in Town E
b)the sum of $50,000 credited to the parties’ portfolio account in 2004
c)the sum of $100,000 paid to the husband in cash by his mother
d)the sum of $24,808.51 inherited by the husband from his late father’s estate in Europe
e)the husband also contributed to the marriage the sale proceeds of the first Suburb U property.
The wife acknowledges that the sale proceeds from the first Suburb U property are a contribution by the husband to the marriage, however, she submits that the quantum of the actual contribution is difficult to ascertain. The property was sold on 8 August 1997 but the wife states that prior to its sale there was a refinancing by the husband and the intervener of $418,000 on

6 June 1997. The husband’s evidence is that the proceeds of sale of the first Suburb U property were $110,000.

Contributions post separation

The wife’s evidence is that the husband and wife’s assets at the time of separation consisted of the following:
a)W Street
b)The second Suburb U property
c)a Mercedes motor vehicle
d)a Jaguar motor vehicle
e)the wife’s diamond ring (retained by husband).
The wife states that their liabilities were as follows:
a)Loan Account No. 1: $352,886
b)Loan Account No. 2: $69,811
c)outstanding school fees: $3,186.
The wife asserts that the rental income from the second SuburbU property serviced the interest repayments on both loans to the St George Bank.
From September 2008, the wife lived in hospital accommodation in Town E. She asserts that she undertook domestic duties in the household each day, including taking the children to and from school and taking them to their sporting and music commitments.
The wife asserts that following separation she continued to deposit her wages into her joint account with the husband. Her evidence is that both parties withdrew monies to pay for their living expenses.
It is the wife’s evidence that, from September 2008 to September 2009, she paid $200 per week to service interest in relation to Loan Account No. 2.
After the parties separated, the husband and wife entered into consent orders allowing the husband to move to Sydney with the children. The wife’s evidence is that the husband moved to Sydney on 24 September 2008 and the children moved on 5 October 2008.
The husband was the primary carer for the children until 5 August 2009, when the Court made orders for the suspension of this arrangement and for the husband’s time with the children to be supervised.
In October 2008, the wife states that she became aware that the husband had withdrawn a total of $132,000 from Loan Account No. 1 and Loan Account

No. 2. On 5 February 2009, the Court made orders requiring the husband to repay $60,000 into one of the loan accounts and to pay $10,000 into the trust account of the wife’s solicitors.
The wife states that, from January 2009, the husband received the rental income from the second SuburbU property of $3,300 per month. In July 2009, the tenants vacated this property and the husband commenced occupation.
From 4 August 2009 to present, the wife has had the primary care of the children pursuant to the orders of this Court. From this date, the children lived with the wife in Town E. Orders were also made for the husband’s time with the children to be supervised at Town E Contact Centre.
Final parenting Orders were made by Le Poer Trench J on 23 December 2009 providing that the children live with the wife and that the husband spend supervised time with the children at Town E Contact Centre. Orders were also made for the husband to attend psychiatric therapy.
The husband deposes that after separation he continued to make all loan repayments on the W Street property until February 2009.
The wife states that she received a default notice letter from St George Bank in relation to the second Suburb U property on 22 October 2009 and that she advised the husband, through his legal representatives, to rectify the mortgage arrears.
On 6 November 2009, the wife filed an urgent interim application seeking the sale of the second Suburb U property. At the hearing on 11 November 2009, the husband and wife reached an agreement that the husband would utilise the redraw facility on the loan account to discharge the arrears, and that he would be responsible for future outgoings on the property and the mortgage. According to the wife, this agreement was confirmed by the husband’s legal representatives by a letter dated 16 November 2009. Her evidence is that the husband made one payment of $400 towards the mortgage on 14 December 2009, but that otherwise he did not comply with the agreement.
In his evidence, the husband admitted that his failure to pay the mortgage on the second Suburb U property during the period that he occupied it may have caused a serious financial detriment to him and the wife.
In June 2011, Court orders were made providing to the wife $55,000 and to the husband $25,000 by way of partial property settlement.
The wife submits that her contributions since separation have been far greater than those of the husband. She claims that she has had total financial responsibility of the children and that she has provided almost all of the emotional support for the children, in circumstances where the husband has only seen the children on two occasions since August 2009.
The wife submits that the Court should consider that her contribution has been made more difficult by the nature of these proceedings, which the husband has maintained since the Court’s judgment in respect of the parenting issues. She also submits that the Court should consider the hardship brought about by the two contravention proceedings initiated by the husband against the wife.

Conclusion based on contribution

In his written submissions dated 17 August 2012, the husband submits that the contribution-based entitlement favours the husband by virtue of his initial financial contributions, his financial contributions during the marriage, the

indirect financial contributions of his family, his non-financial contributions including his homemaker and parenting contributions.
The husband submits that, on the assumption that the intervener is successful in her claim, the contribution-based entitlement should be assessed at 60 per centum to the husband and 40 per centum to the wife. He states that this is based primarily on his initial financial contributions and financial assistance from his parents, without which, he claims, “the parties would have no wealth.”
In the event that the intervener is either wholly or partly unsuccessful, the husband submits that his entitlement based on contribution should increase. In that event, he submits, the contributions by the intervener should be asserted to have been made on the husband’s behalf.
The Court notes that there is inconsistency in the wife’s written submissions with respect to contribution-based entitlements expressed as a percentage.
In her written submissions dated 17 February 2012, the wife submits that the husband’s financial contributions exceed hers, such that the contribution-based entitlement should be assessed as 60 per centum to the husband and 40 per centum to the wife. Post separation, however, the wife asserts that she has made a significant contribution to the welfare of the family. She has occupied the former matrimonial home and claims that she has not received any financial or emotional support from the husband with respect to the care of the children. Considering overall contributions to the date of hearing, therefore, the wife submits that the parties’ contributions should be assessed as 55 per centum in favour of the husband and 45 per centum in favour of the wife.
In her later written submissions, dated 11 September 2012, the wife submits that the overall contributions should be assessed as 37.5 per centum in favour of the wife and 62.5 per centum in favour of the husband.
All in all, I assess the contributions of the husband and wife to the acquisition, conservation and improvement of the property between them, including such property which is no longer the property of the husband and wife or either of them, to be 58 per centum to the husband and 42 per centum to the wife to the date of separation.

Section 75(2) considerations

The husband is 41 years of age.
The wife is 44 years of age.
The wife is engaged in full-time employment as an accredited healthcare worker and earns a salary of approximately $75,064.
The Court notes that, as an accredited healthcare worker, the wife does shift work and therefore her pay varies every week. In any case, the wife’s PAYG Payment Summary for the year ended 30 June 2012 (which became Exhibit 30) shows that the wife’s gross earnings were $71,120 and that she had reportable fringe benefits in the sum of $16,998.
After a period of unemployment, the husband has recently gained employment in the transport sector of a government agency. The husband’s evidence was that, as at the final day of the hearing, he had been working for two weeks. The husband submits that he earns $22.80 per hour or about $40,000 to $45,000 per annum.
The wife has sole parental responsibility for the two children of the marriage, aged 13 and 14 years old. She is the primary caregiver for the children and the husband currently does not spend regular time with the children.
The husband gave evidence that he has complied with the orders of

Le Poer Trench J of 23 December 2009, requiring him to have psychological treatment. The husband stated that he had seen Ms BB, a registered psychologist, on five or six occasions and that he had also seen a mental health care plan psychiatrist, Dr FF, once per month over the course of a year.

On 7 February 2011, the husband was issued with a Child Support Assessment Notice for the period 24 March 2011 to 15 June 2012 (this became Exhibit 9). For that assessment period, he was to pay $30.83 per month in child support. In a Transaction Statement for the period 10 September 2009 to 14 September 2010, it appears that the husband was paying approximately $40 per fortnight. This decreased to approximately $13 per fortnight in May 2010.
It is presumed that the husband will be reassessed for child support now that he is in full-time employment.
The husband submits that the wife has re-partnered but the details are not known. The husband has not re-partnered.
The wife submits that there should be a substantial adjustment pursuant to

s 75(2). She states that an adjustment is called for on the following basis:
a)Following separation the husband has committed waste by:
9.1.1Occupying [the second Suburb U property] and not paying the mortgage.
9.1.2Failing to cause the sale of [the second Suburb U property] in a reasonable time which caused the parties to lose substantial monies by way of principal and interest on their mortgage.
9.1.3Involved the Wife in pointless litigation which could only be described as litigation to cause the wife emotional stress and financial hardship.
b)The wife has the care of the two children, now aged 13 years and 14 years.
c)The husband “has seen fit not to see his children for a period of almost four years” and “matters other than the financial and emotional needs of the children are more important to him”.
d)The husband through his conduct has significantly reduced the asset pool and, as a result, the amount of money available for distribution has been significantly diminished.
The wife submits that the husband was unemployed for a period of three years, that period commencing six months prior to the end of cohabitation and terminating shortly prior to the last hearing day. She submits that the husband led no affidavit evidence of his attempts to gain employment and simply led evidence on the last day of the hearing as to his new employment.
The wife submits that the Court would regard the husband’s late obtaining of employment with a “grain of salt”. She claims that the likelihood in future is that she will continue to struggle by herself with little or no financial support from the husband.
Further, the wife submits that the husband has behaved in an “economically reckless” manner consistent with the principles of Kowaliw and Kowaliw (1981) FLC 91-092 with respect to defaulting on the loan over the second Suburb U property and delaying the sale of the property, which resulted in a loss of approximately $100,000 when the mortgage with St George Bank was discharged.
The Court notes that the wife has liabilities which have not been included on the final balance sheet and which the Court will take into account as a factor relevant under s 75(2)(o). The Court also notes that the husband has a financial resource to be found in what appears to be his capacity to borrow significant sums from his mother at no interest and unsecured.
The wife submits that there should be an adjustment of 25 per centum in her favour and that, overall, she should receive 62.5 per centum of the asset pool to the husband’s 37.5 per centum.
The husband submits that an adjustment of 5 to 10 per centum should be made in favour of the wife, depending on whether the intervener’s claim is successful.

Conclusion on section 75(2)

Having regard to the matters referred to above and the available pool of assets, and in the circumstances where the wife has the primary care of the two children, the Court has come to the conclusion that there should be a further adjustment of 15 per centum in favour of the wife.

Overall division of assets

The above determination will see the wife receive 57 per centum of the net asset pool and the husband receive 43 per centum of the net asset pool.

Just and equitable

It is the husband’s submission that the intervener should be paid all amounts found to be due to her before any further funds are distributed between the husband and the wife.
The Court finds that the amount owed jointly by the husband and the wife to the intervener is $329,397.63.
The Court finds that the husband and wife jointly owe the children’s trust the sum of $60,000.

The above Orders provide that the amounts owing to the intervener and to the children will be taken from the net proceeds of sale of the W Street property. Any remaining balance from the net proceeds of such sale will be distributed in the ratio of 57 per centum to the wife and 43 per centum to the husband.
The monies to be held on trust for the children will be paid to the wife pursuant to the Order above and on the conditions therein specified.

The division of the assets following discharge of the parties joint liabilities would therefore see the wife receive $242,611.03 worth of net assets and the husband receive $183,022.35 worth of net assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
The wife will receive:

Assets	($)
57 per centum of the balance of net proceeds of sale of the W Street property, after deduction of the parties’ joint liabilities to the intervener and to the children	E 6,043.35
Funds held in controlled monies account payable to the wife	E 162,184.68
Shares	6,018.00
Household contents	3,000.00
Mercedes motor vehicle	10,000.00
Add back: interim distribution pursuant to orders of 5 February 2009	10,000.00
Add back: interim distribution pursuant to orders of 6 June 2011	15,000.00
Superannuation: Super 2 (accumulation interest)	5,105.00
Superannuation: Super 3 (accumulation interest)	3,525.00
Superannuation: Super 4 (accumulation interest)	17,400.00
Superannuation: Super 5	4,335.00
Net assets (including superannuation)	$242,611.03

The husband will receive:

Assets	($)
43 per centum of the balance of net proceeds of sale of the W Street property, after deduction of the parties’ joint liabilities to the intervener and to the children	E 4,559.02
Funds held in controlled monies account payable to the husband	E 69,463.33
Jaguar motor vehicle	25,000.00
Household contents	10,000.00
Diamond ring	1,000.00
Add back: interim distribution pursuant to Orders of 6 June 2011	25,000.00
Add back: unaccounted for funds withdrawn by the husband post separation	17,000.00
Superannuation: Super 1 (accumulation interest)	31,000.00
Net assets (including superannuation)	$183,022.35

I certify that the preceding three-hundred and sixty-one (361) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 22 January 2013.

Associate:

Date: 22 January 2013

[2013] FamCA 14

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Constructive Trust