Wheat & Wheat
[2008] FamCA 266
•20 March 2008
FAMILY COURT OF AUSTRALIA
| WHEAT & WHEAT | [2008] FamCA 266 |
| FAMILY LAW – PROPERTY SETTLEMENT – Contributions, add-backs and superannuation – principles to be applied when determining whether to add back funds expended post-separation |
C and C [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
De Angelis and De Angelis, (2003) FLC 93-133
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Omacini and Omacini (2005) FLC 93-218
Steele and Stanley [2008] FamCA 83
Townsend and Townsend (1995) FLC ¶92-569
| APPLICANT: | Mr Wheat |
| RESPONDENT: | Mrs Wheat |
| FILE NUMBER: | HBF | 59 | of | 2006 |
| DATE DELIVERED: | 20 March 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20, 21 & 22 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | A TREZISE |
| SOLICITORS FOR THE APPLICANT: | ATS LEGALS |
| COUNSEL FOR THE RESPONDENT: | M CRISP |
| SOLICITORS FOR THE RESPONDENT: | PAGE SEAGER |
Orders
By consent the partnership “[Wheat & Wheat]” (“the partnership”) be dissolved as and from 31 December 2007.
Within sixty (60) days of the date of these orders the husband shall assign to the wife thirteen (13) fishing quota licences (such quota licences being those which have not had any fishing from them in the 2008 calendar year),
Each of the parties be equally liable for any taxes arising out of the operation of the partnership, except the husband shall pay and be responsible for the payment of the Australian Tax Office December quarterly tax payable of himself and the wife in the sum of $28,226.00 and $27,764.00, respectively, referred to in the husband’s case outline, and if not paid the husband shall indemnify the wife in respect of such tax.
The husband shall indemnify the wife in relation to the partnership overdraft account no: …8 (approximately $148,977.00) and the J Wheat overdraft account no: …4 (approximately $176,057.00) and shall provide to the wife a release from her personal covenants, if any, in respect of such overdrafts, such release/s to be provided within sixty (60) days from the date of these orders.
Within sixty (60) days of the date of these orders, the wife sign all documents and execute all papers to assign to the husband her interest in B property and S property and:-
(a)the husband shall cause the ANZ mortgage (approximately $536,967.00) in relation to S property to be discharged at the time of such transfer; and
(b)the husband shall indemnify the wife in relation to municipal rates, water rates, land tax and other expenses in respect of B property and S property.
The wife shall be liable for and shall pay the KPMG account for work undertaken on her behalf in the sum of $2,420.00, and if not paid the wife shall indemnify the husband in respect of such liability.
Within sixty (60) days of the date of these orders the wife shall resign as Trustee of the “[Wheat] Superannuation Fund” and shall resign as Director of any corporate trustee of that superannuation fund. The husband and wife shall cause the fund to roll-over to the wife her entitlement in that fund of about $165,608.00 (as adjusted in accordance with the advice of the accountants and/or auditors of the fund) to a fund lawfully and reasonably nominated by the wife within that sixty (60) day period.
The husband shall be declared, as against the wife, to ownership of the Telstra shares in his name, control of T Pty Ltd as Trustee for the Family Trust (and in that regard the husband shall indemnify the wife in respect of the liabilities of the Family Trust), the remaining thirteen (13) fishing quota licences, the ANZ bank account (S rental), the ANZ bank account (S property), the ANZ bank account (husband) and the ANZ V2 Plus account, the artwork at B property, the additional artwork purchased by the husband since separation (value approximately $47,500.00), the four wheel drive motor vehicle registration …, the loan made by the husband to the parties’ son and the husband’s superannuation of about $179,736.00.
The wife shall be declared, as against the husband, to the Telstra shares in her name, the Telstra shares jointly held by the parties (in this respect the husband shall, within sixty (60) days from the date of these orders, sign all and any documents to transfer his interest in such Telstra shares to the wife), the items numbered 2, 14, 15 and 17 in the “Schedule of artwork” dated 26 March 2007 prepared by Mr B, items 8, 15, 16, 23, 25, 28 and 29 in the “schedule of antiques, carpets and other chattels” dated 5 March 2007 prepared by Mr B, the shares invested by the parties’ son on behalf of the wife, the wife’s superannuation interest of about $165,608.00.
The husband cause to be properly packed and delivered to the wife at
L, within sixty (60) days of these orders, any vintage Pru Acton clothing, china and ornaments (accumulated during the marriage) held at B property.The parties shall do all acts and sign all documents to list the property referred to further in these orders (“the chattels”) for sale by auction or as otherwise agreed in writing between the parties through B Gallery or through such other auctioneer or organisation as is agreed by the parties in writing namely the following:-
(i)artworks formally in control of the wife and referred to in the “schedule of artworks dated the 26 March 2007” excluding items 2, 14, 15 and 17 (which are to be retained by the wife in accordance with order 9);
(ii)the items in the schedule of antiques, carpets and other chattels “dated the 5 March 2007” prepared by Mr B excluding items 8, 15, 16, 23, 25, 28 and 29 (which are to be retained by the wife in accordance with order 9);
(iii)artwork held by G Gallery (value $31,950.00);
The parties do all acts and sign all documents to cause property at L to be sold by public auction as soon as is convenient subject to the following:-
(a)the wife shall remain in possession of the L property until settlement of its sale and shall vacate the property in accordance with any directions given by the solicitor acting on the sale;
(b)the wife will keep L property in a clean and tidy condition and make it reasonably available for inspection by prospective purchasers, including open days as recommended by the selling agent.
(c)the husband shall pay council rates, insurance, electricity and gas on L property for a period of ninety (90) days from the date of these orders and thereafter such amounts shall be paid by the wife;
(d)the solicitor acting on the sale of L property shall be as agreed in writing between the parties and in the event they are unable to agree a solicitor nominated at the request of either party by the President of the Law Society of Tasmania;
(e)the auctioneer and agent of the sale shall be that auctioneer and agent as agreed in writing between the parties, in the event the parties are unable to agree such auction or agent shall be as nominated, at the request of either party, by the President of the Real Estate Institute of Tasmania;
(f)the parties shall instruct the solicitor to deduct from the net proceeds of sale of the L property any outstanding council rates and/or adjustment of council rates (subject to the requirement of the husband and wife paying their respective expenses as provided above in this order), solicitors costs and disbursements, fees on appointment of solicitor, auctioneers and agents selling expenses and advertising and any fees associated with the appointment of the auctioneer or agent;
(g)the net proceeds shall be as set out below.
In the event that the total net proceeds of sale of the L property and the chattels are such that they are more than $1,039,985.00 (‘the sum”) the whole of the net proceeds of sale of L property and the chattels shall be disbursed as follows:-
(a)in payment of one half plus $519,992.50 to the wife; and
(b)in payment to one half less $519,992.50 to the husband;
In the event that the net proceeds of sale of L property and the chattels are such that they are less than the sum, the husband shall pay to the wife the whole of the sum plus the difference between $519,992.50 and one half of the total net proceeds of sale of L property and the chattels. Such payment to be made within thirty (30) days after completion of the sale of L property and the chattels.
All outstanding applications be dismissed.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Publication of this judgement under the pseudonym Wheat & Wheat is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: HBF:59 of 2006
| Mr Wheat |
Applicant
And
| Mrs Wheat |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are property proceedings between Mr Wheat (“the husband”) and Mrs Wheat (“the wife”).
The issues between the parties include:-
a.add backs claimed by the wife being the expenditure by the husband out of the partnership profits from the fishing units from separation to hearing;
b.loss of $56,109.00 by T Pty Ltd as trustee for the Family Trust which seems to include the unquantified dissipation of funds associated with the T Project;
c.since separation the losses from rental of the S property and the loss of reasonable return on the capital value of the property, all as a result of a child of the parties having occupation of that property;
d.the dissipation of the proceeds of sale of public company shares by the husband,
e.losses on the changes in motor vehicles used by the husband, and
f.alleged extravagant spending by the husband on himself and on the parties’ adult children.
The wife asserts that with an adjustment to the pool of assets as set out above or alternatively an adjustment in respect of the other factors then there ought to be a division of property as to 60% in favour of the wife and 40% in favour of the husband.
The wife also claims there ought to be included in such adjustment an allowance in her favour in respect of an inheritance expectation of the husband’s father being an inference arising from the husband’s financial assistance of his father in a property development.
The husband seeks a division of the substantial assets of the parties on an equal basis.
A primary matter in issue is either the add-backs in terms of the alleged losses and dissipations of funds to the benefit of the husband and an assertion that the wife has dissipated funds in relation to her association with a religious group called “Potters House”.
In these reasons all statements of fact are to be treated as a finding of fact, unless in the context of the statement it reads otherwise.
BACKGROUND
At the date of hearing the husband was aged 59 and the wife was aged 58. The parties met in 1964 when they were both aged about 15.
They married in October 1971. There are two children of the marriage, a daughter aged 27 and a son aged 24. The parties separated in April 2006. The parties were divorced on 2 July 2007.
This is a sad case, the parties have known each other since they were aged about 15 and for the bulk of their marriage for both parties it was a happy union. The husband expresses great love for the wife but says that her involvement in the religious group “Potters House” has caused so much change to her that he can no longer live with her. In evidence he says, and I accept, that he sincerely regrets the failure of the marriage. The wife gave evidence, which I accept, that she still loves her husband but that his failure to understand her need for spiritual support, that her Church and her worship has given her. The wife said that she will regard herself as being married to the husband for the remainder of her life.
During the course of the hearing I indicated to both parties that the task of this Court was not to determine the rights or wrongs as between the parties and their respective beliefs but to determine how property ought to be adjusted under Part VIII of the Family Law Act 1975 (“the Act”).
Proceedings were commenced in this Court on the 15 June 2006 and were heard on 20, 21 and 22 February 2008.
The principles to apply
The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 78,386, reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s 79:
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79 (4) (a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79 (4) (d), (e), (f) and (g), (“the other factors”) including, because of s.79 (4) (e), the matters referred to in s.75 (2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
40. Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.”
Thus the approach in this case involves a number of steps:-
a)The identification of the property and its value;
b)An evaluation of the parties’ contributions having regards to ss 79(4)(a)(b) & (c);
c)Consideration of any adjustment to that assessment having regard to the relevant matters in ss. 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and
d)Consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case
CREDIT OF PARTIES
The husband was taken through the evidence of the wife at the commencement of his evidence. He made appropriate concessions and acknowledged much of the wife’s evidence. The husband was an impressive witness and I accept him to be generally a witness of truth.
The wife gave evidence in accordance with her affidavit filed and sworn on the 18 January 2008 (the wife’s affidavit) and in accordance with her financial statement sworn on the 1 November 2007 and filed on the 5 November 2007. She has not accepted that the relationship is at an end and describes divorce as a violent act.
The wife attended at the Federal Magistrates Court on the application for dissolution of marriage and she opposed that application.
Each of the parties has their different views from their different and subjective perspectives. Both parties made concessions against their interest.
Neither party was seriously impeached in terms of their respective evidence.
IDENTIFICATION OF ASSETS & LIABILITIES
The assets and liabilities of the parties are as follows:-
| Assets | ||
| B property | $800,000.00 | |
| L property | $950,000.00 | |
| S property | $836,000.00 | |
| ANZ Bank account (“S Rental”) | $7,564.00 | |
| ANZ Bank – husband’s account (“S property”) | $2,167.00 | |
| ANZ Bank – husband’s account | $881.00 | |
| ANZ V2 Plus account number (in husband’s name) | $6,183.00 | |
| Telstra Shares (2,000 shares @ $4.75 – 14 February 2008) | $9,500.00 | |
| Telstra Shares (2,000 shares @ $4.75 – 14 February 2008) | $9,500.00 | |
| Telstra Shares (2,000 shares @ $4.75 – 14 February 2008) | $9,500.00 | |
| T Pty Ltd as trustee for The Family Trust | NIL | |
| 26 fishing Quota Licenses @ $200,000.00 each | $5,200,000.00 | |
| Funds withdrawn by wife from joint account | NIL | |
| Artwork in the possession of husband at B property | $131,100.00 | |
| Additional artwork purchased by husband post separation | $47,500.00 | |
| Artworks in control of wife to be sold | $56,150.00 | |
| Artworks to be retained by wife | $29,750.00 | |
| Artworks held by B Gallery to be sold | $31,950.00 | |
| Antiques, carpets and other chattels in possession of Wife at L property to be sold | $118,250.00 | |
| Antiques, carpets and other chattels in possession of Wife at L property to be retained | $16,750.00 | |
| Artworks situate at S property (I found that these belong to the children) | NIL | |
| Four wheel drive motor vehicle | $80,000.00 | |
| Boat and Trailer | NIL | |
| Proceeds of sale of craft | NIL | |
| Shares invested by the parties’ son on behalf of Wife | $10,000.00 | |
| Money owed by the parties’ son to the husband | $5,000.00 | |
| Wife’s entitlement in superannuation fund | $165,608.00 | |
| Husband’s entitlement in superannuation fund | $179,736.00 | |
| TOTAL | $8,703,089.00 | |
| Liabilities | ||
| Loan over S property | $536,967.00 | |
| ANZ Visa credit card | $8,867.00 | |
| Wheat & Wheat overdraft (the partnership overdraft) | $148,977.00 | |
| J Wheat overdraft | $176,157.00 | |
| ATO December Quarter tax payable (28 February 2008) | $28,226.00 | |
| ATO December Quarter tax payable (28 February 2008) | $27,764.00 | |
| KPMG account for work undertaken by that firm on behalf of Wife and her lawyer for proceedings | $2,420.00 | |
| TOTAL | $929,378.00 | |
The net assets of the parties as at the date of hearing total $7,773,711.00.
All of the values of the properties are agreed. The issues relate to the J Wheat overdraft and the date of that overdraft and which properties ought to be sold and which properties ought to be retained.
During the evidence of the husband the wife conceded that there ought to be an additional asset being a deposit of $10,000.00 with the parties’ son which is still held by him[1].
[1] paragraph 34 of wife’s affidavit.
Each of the parties seeks orders to have the B property exclusively of the other and seek a transfer of the other party’s interest in that property.
The husband seeks to have the property at S sold at present value to the parties’ daughter. The wife wishes to retain that property, although she has not ever resided in it. The wife gave evidence about the acquisitions by the parties of property in Melbourne from 1999 onwards[2].
[2] paragraph 28 of the wife’s affidavit
In relation to that issue the husband says, and I accept, that the parties purchased a property in Melbourne in 1999 to provide accommodation for the children when they attended university. The parties decided to sell that property and purchase a property at S in Victoria in 2001. The parties’ daughter has lived in that property since that time.
The husband’s evidence was that the parties needed to sell the Melbourne property to fund S property. There was an auction and an offer was made which both the husband and wife rejected. The property was subsequently sold some months later for less than that sum as the Melbourne property market had slumped. This was simply seen as part of the financial ups and downs of the parties’ finances during the course of their marriage.
The wife seeks that S property be transferred to her[3] because:-
”……. into the future I would like to have a “base” in Melbourne. I expect my children to be located there or interstate in years ahead, and I would expect to be able to see them there rather than always having to come to Tasmania. [The daughter] could remain as my tenant if she wished”.
[3] paragraph 53(c) of the wife’s affidavit.
The evidence of both parties is that their daughter has lived in the S property since its purchase. The evidence of the husband, which I accept, is that their daughter eventually wants to buy that property. There is no issue that the property has a value of $836,000.00 and is jointly owned by the parties. The wife has not resided in that property and I see no reason why it cannot be transferred to the husband at the agreed value. If the husband wishes to assign the property to his daughter that would be a matter for him into the future.
I am concerned that to transfer S property to the wife would further exacerbate the conflict between the parties and could lead to further litigation. The evidence of the wife is that her relationship with her daughter is not the best and I accept the evidence of the wife that there is unhappiness between her and her daughter arising from her alignment with the husband in the marriage break-up. I accept the evidence of the husband that the wife does not accept her daughter’s current domestic arrangements.
As a result I intend to order the transfer of S property to the husband at the agreed value.
Neither party wishes to retain L property, although the wife seeks to have it transferred to the husband at the agreed valuation. The husband opposed that approach. I have determined that L property should be sold and the proceeds divided in accordance with these orders.
There was initially an issue as to whether each of the 26 fishing units were to be valued at $200,000.00 each or $230,000.00 each. At the conclusion of the trial the parties agreed that their value was $200,000.00 each making a total value of $5,200,000.00.
There was also initially an argument at to the value of T Pty Ltd as trustee for the Family Trust. The wife complained that the husband ought not to be allowed the liabilities in respect of T Pty Ltd as Trustee for the Family Trust. Tendered in evidence[4] were the financial statements of T Pty Ltd as at 30 June 2007 which showed a negative value of that company at $49,832.00. There was no issue as to the value of the assets and liabilities. The argument of the wife was that she was excluded from the trust and knew very little about the entity except to the extent[5] that she had read the financial statements for its financial year ending the 30 June 2006. The husband claimed it had a negative value (loss) of $49,832.00, the wife says this has a value of $131.00. The parties agreed at the end of the trial that it had a nil value. I have adopted that joint approach.
[4] Exhibit H1.
[5] paragraph 32 of the wife’s affidavit.
There is also an argument as to whether art works situated at the home occupied by the parties’ daughter at S are the property of the parties’ children or are the property of the parties. There is no issue as to the value of the artwork as being $14,600.00. The evidence of the husband in this regard was that these artworks were given to the children and as such is their property. The evidence of the wife is as set out in her affidavit and in evidence during the hearing. The parties have been very generous to their children and on balance I find these artworks not to be the property of the parties, in this respect I prefer the evidence of the husband. As such it is not property which should be included in the pool of assets.
The husband owns a four wheel drive motor vehicle and there is an argument as to whether the value of that vehicle is $80,000.00 or $96,000.00. Evidence was tendered by the husbands counsel as to the “Red Book” value of the vehicle. The wife asserted its value ought to be $96,000.00. The husband asserted its value ought to be $80,000.00 which accorded with the Red Book valuation. There was no further evidence provided. At the conclusion of the hearing the wife agreed that the value of this car was $80,000.00.
The wife asserted the husband owned the boat and trailer of an unknown value and sought to have it included in the pool of assets. The husband says that this is property of the children. The evidence of the husband, which I accept, was that the boat and trailer were purchased by the parties’ children (although the trailer is registered in the husband’s name). As such it is not property which should be included in the pool of assets. At the conclusion of the hearing the wife adopted the husband’s approach about these assets.
The wife claims that the proceeds of sale of the Craft of $50,000.00 ought to be added back to the pool as the husband has had the benefit of the proceed of sale. The husband says the boat was sold for $50,000.00 (although evidence later indicated that it may have been sold for $45,000.00). The husband said and I accept that $15,000.00 of the sale price was refunded to the purchaser as a consequence of a split in the boats hull. The balance of either $35,000.00 or $30,000.00 was used to reduce the debts of the parties. As a result there is nothing to add back in this respect.
There is agreement as to the value of the parties self managed superannuation fund. It is agreed between the parties that the fund is to remain controlled by the husband and that the wife’s interest in the fund will be rolled over to another complying fund nominated by her. The wife initially sought a split to make the difference in the funds equal (the difference is about $14,000.00). In view of the superannuation amounts being so similar and the adjustment of superannuation being $10,000.00 or less it seems appropriate in the circumstances of these proceedings to treat them as assets of a single list and to make the adjustment in the other assets of the parties. The husband adopted this course as did the wife in submissions or during the hearing.
There is agreement as to the liabilities with the exception of the J Wheat overdraft. It was conceded by the wife that the overdraft is $176,157.00 as at 1 February 2008 but says that she should only be liable for a share of $64,000.00 of that overdraft as the husband has dissipated the income from the fishing units.
With regard to the J Wheat overdraft, the parties have agreed that the fishing partnership ought to be terminated as at 31 December 2007, I adopt that approach. Evidence given by the husband during submission, (with the consent of the wife) was that the licences were refreshed each year with regard to the amount of fish that could be taken. Only six (6) licences had been “fished”. The husband would retain those six (6) licences as he had the benefit of the income from them.
The J Wheat overdraft as at the 31 December 2007 was $159,378.00. Counsel for the wife submitted that should be the overdraft amount for the purpose of determining the pool of assets.
Counsel for the husband submitted there had been payments to the wife subsequent to that time (and I find there were also payments to or on behalf of the parties’ daughter plus interest accruing on that overdraft).
The wife has been paid by the husband $300.00 per week plus a sum of between $400.00 and $500.00 per week for other expenses. As such she has received the benefit of about $800.00 per week over the four week period between 1 January 2008 and the date of hearing.
In those circumstances I intend to adopt the course submitted on behalf of the husband, which is, leave the overdraft as at the 1 February 2008.
As is often the case at the time of separation there was great unhappiness and miscommunication. The wife did not want the marriage to end, and wanted the husband to try and find an alternate solution. The husband instructed his solicitor to send a letter to the wife[6], this was done and the letter was in conciliatory terms suggesting a meeting and negotiated settlement. The wife took this as a failure in trust and withdrew $110,000.00 from the partnership overdraft account. This took the account to near its limit. The husband had trusted the wife and believed that this withdrawal was in breach of that trust. This money had been earmarked by him to pay the next quarterly tax bill.
[6] Exhibit H6.
The husband says, and I accept, that because the wife withdrew the money and the bank had concerns about the hostility between the parties they would not allow him any further advances on the partnership overdraft. To enable the business to continue to run the husband set up another overdraft account. As a consequence the husband says that he had to set up a loan account in the name of J Wheat alone to enable him to cover the tax debt and run the business from that time onwards. The husband borrowed $200,000.00 and has used this as the fluctuating overdraft since that time. I accept that it had a liability of $176,157.00 as at February 2008.
CONTRIBUTIONS
At the commencement of the trial I asked the wife’s counsel if he sought there to be a Kennon[7] type argument where it is alleged that the violent conduct of one party towards another during a marriage was demonstrated to have a significant adverse impact on the parties contribution to their marriage, or, put it the other way, to have made his or her contributions significantly more arduous than they ought to have been[8]. I was informed by counsel for the wife that no such argument was being put.
[7] Kennon v Kennon (1997) FLC 92-757.
[8] Ibid page 84-294.
In her affidavit the wife asserted violence by the husband[9]. The husband’s evidence was that he conceded some levels of violence and abuse but in circumstances of the wife having become a member of a Church group called “Potter’s House” and where he was the subject of constant barrages as to his behaviour and his lifestyle and consequent verbal preaching including preaching at 2.00am and 3.00am in the morning. He asserts the wife said that he was “going to hell” or “he didn’t get it”. He conceded that he locked her out of the house and threw her tapes and books outside the house.
[9] paragraph 26 wife’s affidavit.
In relation to these events I prefer the evidence of the husband to that of the wife.
The husband claimed that there ought to be “negative contributions” by virtue of the wife’s tithing to the Church. The payments by the wife to her Church fall into the general principle that such expenditure was accepted by both parties before separation and ought to be shared by the parties. The husband complained about expenditure subsequent to separation but in the matrix of fact in this case, such expenditure was generally that which the parties adopted prior to separation. The husband was aware that the wife was providing money to her Church and they had a lifestyle which involved significant expenditure from time to time. The law in this regard was discussed in Omaci & Omaci.
As I said in Steele and Stanley [2008] FamCA 83, in Omacini and Omacini [2005] FamCA 195[10] the Full Court reviewed authorities in respect of wastage and add-backs, the Full Court said;
[10] (2005) FLC 93-218 and (2005) 33 Fam LR 134.
“30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC ¶ 92-816 the Full Court said at 85,262:
``11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought to be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought to normally be spelt out.''
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC ¶ 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
``In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which [79618] would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.''
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC ¶ 91-092 at 76,644:
``As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.''
31. As the Full Court said in Browne v Green (1999) FLC ¶92-873 at 86,360:
``44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction — a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.''
In Chorn and Hopkins (2004) FLC 93-204 the husband bought his new partner an engagement ring eight months after separation. It was not purchased with funds the husband had at separation, it was purchased on credit and there was vague evidence that his partner may have contributed to the purchase. The Full Court quoted favourably from para 2.11 of Marker and Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ:
"There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support."
It also quoted favourably from para 346 of C and C [1998] FamCA 143, 8 October 1998 per Nicholson CJ, Chris and Kay JJ:
"Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with property getting on with their lives."
In Omacini and Omacini, supra, the Full Court found that the trial judge had incorporated a number of add-backs without making any specific finding that the expenditure of the husband was wanton or reckless. To justify an add-back, it was necessary to make some assessment of the reasonableness of the husband's expenditures. This had not occurred.
In Townsend and Townsend (1995) FLC ¶92-569 the husband after separation sold a taxi licence. He spent much of the proceeds for his own benefit. Nicholson CJ said at p 81,654:
"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly."
In this case the parties enjoyed a good lifestyle and spent money as it was earned. Money was spent on the church by the wife, money was spent on motor vehicles and on their children. The wife complained in her affidavit about the husband’s acquisition of motor vehicles[11], expenses for the parties daughter[12], the husband’s use of boats[13] (in that regard the husband said the boats were used for business and I prefer his evidence in that respect), renovations of the B property[14], assistance of the husband’s father (referred to earlier in these reasons) and the purchase of paintings[15].
[11] Paragraph 30 of the wife’s affidavit.
[12] Paragraph 28, 49 of the wife’s affidavit.
[13] paragraph 16 & 17 of the wife’s affidavit.
[14] paragraph 28 & 29 of the wife’s affidavit.
[15] paragraph 44 of the wife’s affidavit.
The wife also complains in her case outline and the giving of her evidence that the husband has not accounted for profits of the business since separation and that the husband has made losses through T Pty Ltd as trustee for the Family Trust. She complains about unexplained dissipation of funds associated with the “T Project”.
I am satisfied that the husband had not undertaken a spending pattern different such than at separation. That was the way the parties operated their funds. The wife took $110,000.00 from the parties’ funds soon after separation and the business has funded the wife’s occupation of the former matrimonial home.
At some level the wife seems somewhat “mean spirited”. After separation the husband did not disturb the wife’s continued occupation of the former matrimonial home at L and he commenced living at B. The wife complained that the husband has “unilaterally decided to occupy the [B] property and exclude me from it with the threat of family violence order”[16]. She could not occupy both homes and objected to the husband using the holiday home as his base subsequent to separation.
[16] paragraph 44 of the wife’s affidavit.
The husband says at paragraph 23 of his affidavit that in about May 2006 the wife came to the B property at about 2.00am demanding a conversation. The husband allowed the wife to remain at the home on the proviso she left first thing in the morning. When he returned to the property after leaving early in the morning he found the wife had changed the locks and barred the windows. Some of the husband’s possessions were removed from that home. To be fair to the wife, she changed the locks at the B property on legal advice.
B property was purchased by the parties in about 1980 and was their primary residence for about eight years. From 1988 to separation the primary home of the parties was in L. I accept the husband’s evidence that he undertook significant renovations towards both homes. The husband treated B property as a place where he could take refuge in terms of the wife’s constant preaching to him in respect of her beliefs arising from being a member of the “Potters House” religious group. It is a significant property to him in terms of his history and that of his children. The wife’s brother owns the property next to B property, but I accept the evidence of the husband that the wife and her brother are estranged.
The wife asserts that she should retain the property as it was chosen by her. I do not accept her evidence in that regard and I accept the evidence of the husband that the property came to him after he had discussions with the real estate agent friend at about that time in that area. In any event little rests on this issue.
The wife asserts that she wanted to spend the rest of her life at B property. I have some concerns about her evidence in this regard as she also asserts that she wanted the house in S as a base in Melbourne where her daughter was living. There were exchanges between the bench and the legal representatives and there had been discussion about various options in respect of the B property. The husband has a real connection with B property and on balance I determine that it ought to be transferred to the husband at the agreed value.
The parties provided assistance to their children at university. This was done by allowing their daughter to live in the house at S and rent was paid through the partnership. The wife gave evidence that she thought this ought to have stopped after separation, although this was communicated in August 2007. However, the wife sets out at paragraph 53 (c) of her affidavit that the parties’ daughter could remain as a tenant if she wished (notwithstanding that the wife wanted to have that house as a base in Melbourne).
The husband’s evidence was that this was an arrangement that had been put in place for the children and had been a long term arrangement and I accept that evidence. I also accept his evidence that the parties had up to separation and after separation provided significant assistance to their children. That has diminished in the last twelve months or so and the only benefit payable to the children at the present time is the provision of accommodation at S for their daughter. The parties’ daughter had continued to be at university until December 2007 and the parties had agreed to accommodate her financially during that period. I do not make that allowance as the wife had facilitated and put in place arrangements before separation. For the period of eighteen months after separation the wife generally acquiesced to that approach.
There was an issue about a loan made to the parties’ son. It was eventually agreed that an amount of $5,000.00 remained outstanding by the son to the husband and this was agreed by the parties and added back to the pool of assets.
I accept the evidence of the husband that the wife is being kept up to date with all the finances of the business and that the husband authorised his accountants to provide information to the wife and her solicitors. The husband kept his accountant up to date as to the financial circumstances of the business.
The wife submitted there ought to be a significant adjustment in her favour as the husband had had the benefit of the income of the partnership since separation in April 2006. In the 2006/2007 financial year the before tax profit was about $577,000.00. Counsel for the wife submitted that half that sum should be considered for the first half of the 2007/2008 financial year. After taking into account monies paid to the wife, tax paid and other expenses, it was submitted that there was about a $200,000.00 difference in terms of the distributions between the husband and the wife over that eighteen month period.
This is to be seen in the context that the husband has effectively run the business since at least 2003 and more likely since 1997. He has paid out some car liabilities and in this regard need to carry loses to reduce his living expenditure. He paid interest on two overdrafts and continued to meet tax liabilities. The draft financial statement prepared by KPMG[17] shows interest on the overdraft of between $7,942.00 and $9,880.00 which can only relate to the partnership overdraft account and not the overdraft account of the husband. He has continued to meet expenses for the children, particularly the parties’ daughter and including the loan repayments on S property.
[17] Exhibit W2.
At the time of separation the husband owned a luxury motor vehicle which he purchased in about 2004 for about $250,000.00. On the advice of his accountant he sold the luxury car for $120,000.00 thus paying out a significant liability on the Porsche. He then purchased a four wheel drive which he had for twelve months on the basis that the dealer would purchase it back at the same price. The husband paid the hire purchase in respect of that four wheel drive over that period of time. To assist in that purchase he sold a utility motor vehicle. One year later he sold the four wheel drive and purchased another one for $127,000.00 which was paid out of the sale of shares owned by the husband and from the business. The value of this vehicle is included in the assets and the losses from the change over of the vehicles fall within the general principle stated by Baker J in Kowaliw, referred to above.
The husband and wife both had a history during the marriage of owning expensive motor cars. The husband reduced his liabilities in motor cars by selling the luxury car and his acquisition of the four wheel drives in the circumstances of these parties was entirely consistent with the living expenses of the parties during the marriage. I am aware that the husband declined to provide $80,000.00 to the wife for her to purchase a car, and in the light of the removal of the $110,000.00 in May 2006 and the impact it had on the running of the business I make no adverse comment by the husband in respect of his refusal in that regard.
In terms of the adjustment sought by the wife of $110,000.00 there would need to be deducted and to take into account the money paid to her by way of informal spousal maintenance of $300.00 per week and the $20,000.00 to $25,000.00 per year to meet expenses on L property. The task is not an arithmetic calculation for the husband did take steps to moderate his spending and continued to meet family expectations which both the husband and wife had adopted during the marriage. On balance it seems to me there ought to be a small adjustment in favour of the wife. I propose to allow $50,000.00 to deal with this disparity and distribution of partnership and income over the period since separation.
The wife submitted that the husband ought to have made available to her a sum of $100,000.00 in June 2007 so that she could place that money in her superannuation fund, save about $24,000.00 in tax and earn about $5,000.00 interest[18].
[18] Exhibit W3.
Unfortunately for these parties they spent their income. The parties were providing significant funds to their children, which the wife said she objected to in late 2007, they were still continuing to wind down their lifestyle after the April 2006 separation. There was not a fund of $100,000.00 available at that time and as such I reject the wife’s submissions for “compensation” for that lost opportunity.
There was an issue that the wife was unable to assert herself and her views during the marriage. The husband has conceded he has training in martial arts. The wife asserted that she was intimidated by the husband’s skills in this area. She said that he hung his black belt on the bedroom door and the sword he kept under his bed. The evidence of the husband was that his training in martial arts was for fitness and denied that he hung his black belt on the bedroom door. He said he hung it in the clothes room and that during the marriage the wife never complained and nor did she ever say that she was intimidated. He said the sword was not kept under the bed, it was kept well away from the family. He conceded that he used some techniques to avoid being hit by the wife when she endeavoured to impose her religious beliefs upon him. The wife agreed that she was direct in her endeavours to have the husband understand her spiritual beliefs. I accept the evidence of the husband that the preaching was regular and forceful. I do not accept that the wife was unable to assert herself and I prefer the evidence of the husband in relation to this issue.
The wife asserted that there ought to be an adjustment in her favour arising from “the inheritance expectation of the husband from his father, being an irresistible inference arising from the financial assistance for her father’s property developments in Tasmania, for which the parties and/or the partnership assets were pledged as security and for which:
(a) there would be no return to the parties/the partnership; and
(b)the unrecoverable loss by the partnership in the sum of $56,109.00 aforesaid, needs to be considered a factor for the purpose of doing justice and equity between the parties”[19].
[19] paragraph 4 of the wife’s summary of argument.
I discuss this in the context of the contribution aspect, but I also take it into account in respect of the other factors. There is no evidence of an imminent gift from the husband’s father nor is there any evidence of the value if any of the eventual estate of the husband’s father such as that discussed in the Full Court in De Angelis and De Angelis, a judgment delivered in November 1999 but reported in (2003) FLC 93-133. In this regard the evidence of the wife was contained in paragraph 31 of the wife’s affidavit.
The husband was asked questions in relation to that investment and conceded that the parties advanced $250,000.00 (which has been repaid) towards the development in circumstances where his father (who was in partnership with the husband’s brother) was in some financial difficulties. The husband said that the wife knew about this and that she was not upset, it was an amicable situation, and I accept that evidence. The parties’ wealth was based upon the husband’s father financing them to their fishing licences in 1976 which is the foundation upon which the parties’ wealth was created.
This was not a payment of $250,000.00 it was a loss of perhaps up to $50,000.00 or $60,000.00 and on the evidence of the husband arose when the parties’ marriage had failed, I accept his evidence in this regard. This also needed to be seen in the context of the parties’ lifestyle. The wife has provided money to support her mother and her Church and the husband felt he owned a debt of thanks to his father for the initial start-up of their fishing business.
The wife did not offer objection to this course although the wife complains of being completely excluded from having any input into the project even though the funds of the business partnership were deployed in it.
The husband asserted that soon after the wife became involved with the “Potters House” religious group her attitude with the family changed. She lost interest in managing the books although the husband continued to provide her with information. I accept his evidence in that regard.
In terms of the financing towards the original purchase of the fishing lease, the husband was provided with $5,000.00 by his father and other funds to provide working capital for the business. The balance was financed through the husband’s father’s accountant and the husband’s father provided a guarantee.
The wife asserts differently at paragraph 8 of her affidavit that it was only a loan of $5,000.00 from the husband’s father. On balance I prefer the evidence of the husband in this regard
There was some cross-examination about the additional help provided by the wife during the course of the marriage. I am satisfied that up to the date of separation the contributions by each party were equal. They have contributed in different ways. The husband undertook the difficult and challenging work as a fisherman up to about 1993 and has long engaged the business since that time. I accept the evidence of the husband that the wife managed the accounts of the business up until about 1997/1998 but from that time it has been managed by the husband with the help of his accountant. The wife did the bookwork up until 1997/1998 but was consulted in relation to the work after that time.
The husband was cross-examined in relation to his expenditure subsequent to separation. On balance I am satisfied as to the husband’s explanation as to expenditure since separation. The husband has paid quarterly tax instalments (with the exception of the February 2008 tax instalments) which has been dealt with by each party individually and he has continued with the spending approach, albeit limited in terms of motor vehicles and other expenses, since separation. This included the continuation of the provision of financial support to the children (which was agreed between the parties up to separation) and which was effectively acquiesced to by the wife subsequent to that time. Each of the children had a credit card up to recent times for their expenses in Melbourne.
I have not repeated all of the evidence in respect of contribution but I have had regard to it. This is a very long marriage in which both parties worked hard in different areas to accumulate and retain a large pool of assets. I determine that their contributions are equal both before and after separation, with the exception of the $50,000.00 in respect of the distributions from the business.
THE OTHER FACTORS
S75(2) factors
(a) the age and state of health of each of the parties;
Both parties are the same age and are in adequate health. They have significant property from which they are able to derive an income.
The health of the parties was not an issue during the trial and I accept their respective assertions as to their health contained in their affidavits.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
Both parties will be left with thirteen (13) of the fishing licences. This will enable each of them to earn income.
The proposed orders do not have an effect on the earning capacity of either party to the marriage.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Neither party has the care or control of a child of the marriage who has not attained the age of eighteen years.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain
As I have said above neither party has the care or control of a child of the marriage who has not attained the age of eighteen years and the assets of the parties are such that they are well able to support themselves. Neither party has re-partnered.
(e) the responsibilities of either party to support any other person
There are no issues of dependent children, although both parents may, from time to time, provide assistance to their daughter and their son and that will be a voluntary matter which ought not to be taken into account in this determination. There are no other orders made under the Act affecting a party to the marriage or a child of the marriage.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
This is a not a matter to which the question of eligibility for pension or allowance is of concern.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Both parties will be left with thirteen (13) of the fishing licences. This will enable each of them to earn income. In addition, the standard of living of the parties will be able to continue at a higher level, albeit perhaps at not the levels when the parties were living together. Both parties have contributed to the pool of assets and, as I have found earlier, those contributions were effectively equal.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
This is not a relevant consideration. Neither party has addressed this issue in their submissions.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
This is not a relevant consideration. Neither party has addressed this issue in their submissions.
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties have been in a long marriage but this has not affected their earning capacity.
(l)the need to protect a party who wishes to continue that party's role as a parent;
This is not a relevant factor as there are no issues of dependent children.
(m)if either party is cohabiting with another person - the financial circumstances relating to the cohabitation;
This is not a relevant consideration as neither party has re-partnered.
n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
I have had regard to the orders proposed to be made under s79 in relation to the future needs of the parties.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
This is not a relevant consideration.
Having regard to all of the evidence I determine that there should not be any adjustment in respect of the other factors.
JUST AND EQUITABLE
As a consequence of the findings and determinations made in these reasons the husband shall retain the following property:-
B property
$800,000.00
S property
$836,000.00
ANZ bank account (S rental)
$7,564.00
ANZ bank account (S property)
$2,167.00
ANZ bank account (husband)
$881.00
ANZ V2 plus account (in husband’s name)
$6,183.00
Telstra shares (2,000 shares @ $4.75 – 14 February 2008)
$9,500.00
13 fishing quota licences
$2,600,000.00
Artwork at B property (in the possession of the husband)
$131,100.00
Artwork purchased by husband since separation
$47,500.00
Four wheel drive motor vehicle
$80,000.00
Husband’s loan to son
$5,000.00
Husband’s superannuation
$179,736.00
TOTAL
$4,705,631.00
Liabilities
ANZ mortgage S property
$536,967.00
ANZ visa credit card
$8,867.00
Wheat & Wheat overdraft (the partnership overdraft)
$148,977.00
J Wheat overdraft
$176,157.00
ATO December quarter tax payable
$28,226.00
ATO December quarter tax payable for wife
$27,764.00
TOTAL
$926,958.00
NET BALANCE
$3,778,673.00
The wife will retain the following:-
Joint Telstra shares (2000)
$9,500.00
Wife’s Telstra shares (2000)
$9,500.00
13 fishing quota licences
$2,600,000.00
Artwork to be retained by wife
$29,750.00
Antiques, carpets and other chattels to be retained by wife
$16,750.00
Shares invested by parties’ son on behalf of wife
$10,000.00
Wheat Superannuation Fund
$165,608.00
TOTAL
$2,841,108.00
Liabilities
KPMG account work undertaken by that firm on behalf of wife
$2,420.00
TOTAL
$2,420.00
Net balance
$2,838,688.00
The property which is to be sold by auction in accordance with these orders is:-
L property
$950,000.00
Artwork in control of wife
$56,150.00
Artwork held by B Gallery
$31,950.00
Antiques, carpets and other chattels in possession of wife
$118,250.00
TOTAL
$1,156,350.00
The total of these three pools is $7,773,711.00 which accords with the total pool of assets set out earlier in these reasons.
The consequence of these orders is intended to be that the husband receive half of the net assets less $50,000.00, vis $3,836,855.50 and the wife receive 50 per cent of the pool of assets plus $50,000.00 making a total of $3,936,855.50.
Under the proposals set out above, the husband retains $3,778,673.00, the wife $2,838,688.00 making a total of $6,617,361.00. Half of this sum is $3,308,680.50. To give equality the husband would need to pay $469,992.50. If this were paid the net pool of assets of the husband would be $3,308,680.50 and the net pool of assets of the wife would be the same.
I will be ordering the sale of the property at L and the artwork and antiques set out in the list of property to be sold. This totals $1,156,350.00. If out of the proceeds of sale I direct that half of the net proceeds be paid to the wife plus $519,992.50 this would take into account the sum of $469,992.50 plus the $50,000.00 referred to earlier.
Having had regard to all of the factors I consider this just and equitable. I will order that the adjustments be made out of the sale of the property as that sale can take place relatively quickly and will not involve the husband in further borrowings bearing in mind he is responsible for the lions share of the liabilities of the parties. I am satisfied this determination is just and equitable.
I certify that the preceding 112 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Legal Associate:
Date: 20 March 2008
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Family Law
Legal Concepts
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Remedies
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Statutory Construction
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