Whelan & Whelan
[2010] FamCA 530
•30 June 2010
FAMILY COURT OF AUSTRALIA
| WHELAN & WHELAN | [2010] FamCA 530 |
| FAMILY LAW – PROPERTY – Wastage as a result of excessive gambling – adjustment based on a Kennon claim of more arduous contributions due to violence |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain and Anor v R (1984) 51 ALR 225 Kennon & Kennon (1997) FLC 92-757 Hamilton & Thomas [2008] Fam CAFC 8 Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd (1992) 110 ALR 449 Spence and Spence [2008] FamCA 263 |
| APPLICANT: | Ms Whelan |
| RESPONDENT: | Mr Whelan |
| FILE NUMBER: | PAF | 1221 | of | 2006 |
| DATE DELIVERED: | 30 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 9 - 11 March 2009; 1 - 4 December 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Adrian Twigg & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Jauncey |
| SOLICITOR FOR THE RESPONDENT: | Jack Rigg Solicitors |
Orders
An order be made pursuant to s 79 Family Law Act in the terms of paragraphs 2 through to 14 below.
In respect to the property at W (“the W property”), within three (3) months of the date of these orders, the husband and the wife do all acts and things necessary to cause:
2.1.The land situate at and known as Lot 1, W and being the whole of the land contained in Folio Identifier 1/… to be transferred to the husband; and
2.2.The land situate at and known as Lot 2, W contained in Folio Identifier 2/… to be transferred to the wife.
The wife shall be declared the sole owner of the property situate at P being the whole of the land comprised in folio identifier …, and the wife be responsible for and indemnify the husband in relation to the mortgage secured on the said property.
The parties do all things and sign all necessary documents to cause Whelan Group Pty Ltd (“Whelan Group”) to transfer to the husband any right, title and interest Whelan Group has in monies owing to it by Capital Access Holdings Pty Limited.
The parties do all things and sign all necessary documents to cause Whelan Group to transfer to the husband the property situate at Y in the State of New South Wales and being all of that contained in certificate of title folio identifier … (“Y property”) subject to the existing encumbrance thereon, and:
5.1.The husband discharge the current mortgage secured over Y property within three months of the date of these orders; and
5.2.The husband be responsible for and pay any transfer costs, Division 7A tax, capital gains tax or other costs or expenses occasioned by the transfer to the husband of Y property.
The husband transfer to the wife all his shareholding and entitlements in Whelan Group.
The husband resign as a director and any other office bearer in Whelan Group.
The wife and Whelan Group indemnify the husband in relation to the husband ever having been a shareholder, director, secretary or office bearer of Whelan Group.
The husband transfer to the wife any credit or debit loan accounts with Whelan Group and the wife be responsible for and indemnify the husband forever in relation to any debit loan accounts.
The parties shall do all things and sign all documents necessary to wind up the company W Breeding Pty Limited and both parties shall be equally responsible for any liabilities of the said company.
The wife shall be declared the sole and absolute owner at law and in equity of the Jaguar motor vehicle bearing registration number …, and to the extent necessary the parties shall do all acts and things necessary to cause the company Whelan Group Pty Limited to transfer to the wife the said motor vehicle; with the wife to be responsible for and pay any transfer costs, Division 7A tax, capital gains tax, or other costs or expenses occasioned by the transfer to the wife of the Jaguar.
The wife shall be declared the sole and absolute owner at law and in equity of all garden plant and equipment at the W property.
The wife shall be declared the sole and absolute owner at law and in equity of all artwork, sculptures and furnishings in the W property.
The husband and the wife shall each be and hereby are declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant.
Liberty to be granted to either party on seven days notice to apply in relation to the implementation of these orders.
In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to s 106A Family Law Act that the Registrar of the Family Court of Australia, Sydney Registry, shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
The husband’s application for interim spousal maintenance be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Whelan & Whelan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF 1221 of 2006
| MS WHELAN |
Applicant
And
| MR WHELAN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case is about what alteration of property interests should be made between the husband and the wife. The parties lived together for 34 years and developed significant assets over that time. The main activity of the parties was conducted at a property at W which was developed by the parties to facilitate the breeding of livestock. In later years, the parties earned money from the W property by agisting horses.
The wife alleges that the husband made her contributions over the period of the marriage significantly more arduous by perpetrating family violence against her. The wife also alleges that throughout the marriage and after separation, the husband wasted money on gambling. The husband alleges that the wife has not properly accounted for profits from the agistment business after separation. Both parties assert against the other that monies should be added back as a result of actions taken by the other party.
For the second time this year, I record with sadness the death of another prominent Sydney family lawyer. Mark Twigg, the lawyer representing the wife in this case as solicitor and advocate, was a fine practitioner. His untimely passing is a great loss to the family law profession.
SHORT HISTORY
The husband was born in 1951 and is now 59 years of age. The wife was born in 1954 and is now 56 years of age.
The parties commenced cohabitation in 1972 and married in 1974.
There are two children of the marriage, S born in 1976 (now aged 33 years) and D born in 1979 (now 31 years of age).
The parties separated on 2 July 2006 and consequently lived together for a period of about 34 years.
APPLICATIONS
Wife
During final submissions the wife sought orders in the following terms:-
1That the husband and the wife do all acts and things necessary to cause:
(a)The land contained in Folio Identifier 1/[…] be transferred to the husband; and
(b)The land contained in Folio Identifier 2/[…] be transferred to the wife.
(c)That the husband pay to the wife the sum of $200,000.
2That the wife shall be declared the sole owner of the property situated at [P] being the whole of the land comprised in folio identifier […], and the wife be responsible for and indemnify the husband in relation to the mortgage secured on the said property.
3That upon receipt of payment by Capital Access Holdings Pty Limited of the amounts owing (or in the event that there be no such funds upon a final distribution on winding up of Capital Access Holdings Pty Limited), the parties shall do all things and sign all documents necessary to effect the following, namely at the husband’s option, either:
(a)Either:
(i) The wife transfer to the husband all of her shareholding and entitlements in [Whelan] Group Pty Limited (“[Whelan Group]”)’
(ii) The wife resign as director, shareholder or in relation to any office she held in [Whelan Group];
(iii) The husband and [Whelan Group] indemnify the wife forever in relation to the wife’s ever having been a shareholder, director, secretary or other officer in [Whelan Group];
(iv) The wife transfer to the husband any credit or debit loan accounts with the company and the husband be responsible for and indemnify the wife forever in relation to any debit loan accounts.
(b)Or:
(i) The husband being declared the sole owner of the property at [Y] in the State of New South Wales and being all of that contained in certificate of title folio identifier […] (“[Y property]”) and the parties do all acts and things necessary to cause the company to transfer to the husband [Y property] subject to the existing encumbrance thereon;
(ii) That the husband refinance the mortgage secured over the property within 3 months of the date of these orders;
(iii) The husband be responsible for and pay any transfer costs, Division 7A tax, capital gains tax, or other costs or expenses occasioned by the transfer to the husband of [Y property]. The parties thereafter shall do all things and sign all documents necessary to wind up the company [Whelan] Group Pty Limited.
4That the parties shall do all things and sign all documents necessary to wind up the company [W Breeding] Pty Limited and both parties shall be equally responsible for any liabilities of the said company.
5The wife shall be declared the sole and absolute owner at law and in equity of the Jaguar motor vehicle bearing registration number […], and to the extent necessary the parties do all acts and things necessary to cause the company [Whelan Group] Pty Limited to transfer to the wife the said motor vehicle; with the wife to be responsible for and pay any transfer costs, Division 7A tax, capital gains tax, or other costs or expenses occasioned by the transfer to the wife of the Jaguar.
6The wife shall be declared the sole and absolute owner at law and in equity of all garden plant and equipment at the [W] property.
7The wife shall be declared the sole and absolute owner at law and in equity of all artwork, sculptures and furnishings in the [W] property.
8That pursuant to s78 Family Law Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant.
9That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to s 106A Family Law Act that the Registrar of the Family Court of Australia, Sydney Registry, shall be an is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
10That the husband pay the wife’s costs of and incidental to these proceedings.
Husband
The husband’s amended case outline (final version at pages 19 – 27) sets out orders which the husband seeks as follows:
1.The Husband shall within 7 days nominate a solicitor to act in relation to the sale of the property situate and known as [W property] in the State of New South Wales being the whole of the land described in folio identifiers lots 1 and 2 in DP […] (“the [W] property”) and the property situate and known as [P property] in the State of New South Wales being the whole of the land described in folio identifier lot […] in DP […] (“the [P] property”).
2.The Wife and the Husband shall within 7 days of the Husband’s nomination pursuant to Order 1, do all acts and things and sign all necessary documents to instruct the solicitor who shall be nominated pursuant to Order 1 (“the solicitor”) to act for them in relation to the sale of the [W] and [P] properties
3.The Husband shall by within 7 ays of this order nominate a licensed real estate agent to act in relation to the sale of the [W] property (“the agent”).
4.The Wife and the Husband shall within 7 days of the Husband’s nomination pursuant to Order 7, do all things and sign all necessary documents to cause the [W] property to be listed with the agent for sale by private treaty.
5.The Wife and the Husband shall do all things and sign all necessary documents to cause the [W] property to be listed with the agent for sale by auction in the event that contracts for the sale of the [W] property are not exchanged by by the 28 February 2010.
6.The Wife and the Husband shall instruct the agent to cause the [W] property to be submitted to an auction sale within 6 weeks of the date that it is listed for auction with the agent.
7.The Wife and the Husband shall agree upon the reserve price for the auction sale of the [W] property at least 14 days prior to the date of the auction sale otherwise orders 12,13 and 14 shall operate, however, orders 12,13 and 14 shall not operate if agreement is reached between the parties in accordance with this order.
8.The Husband shall immediately after the expiration of 14 days prior to the said auction sale do all acts and sign all necessary documents to request the agent to recommend the reserve price for the auction sale of the [W] property.
9.The Wife and the Husband shall immediately do all acts and sign all necessary documents to accept the agent’s recommendation in relation to the reserve price for the auction sale of the [W] property and shall sell the [W] property for such reserve price or such better price that may be bid at the auction sale.
10.The Wife and the Husband shall do all acts and sign all necessary documents to instruct the agent to cause the [W] property to be auctioned again every 60 days from the date of the preceding auction until it shall be sold, upon the same terms and conditions as stated in the abovementioned Orders in the event that the [W] property does not sell on the first occasion that it is offered for sale by auction, provided that the reserve price of the [W] property shall be reduced by 10% from the preceding reserve price on each occasion that the [W] property is submitted to auction.
11.The Wife and the Husband shall do all acts and things and sign all necessary documents so that upon the settlement of the sale of the [W] property the proceeds of sale shall be disbursed in the following manner and priority:
11.1Firstly, the commission and the fees of the agent including advertising expenses, together with legal fees are to be paid;
11.2Secondly, any loan or loans secured by a mortgage or mortgages registered upon the title of the [W] property is/are to be repaid;
11.3Thirdly, council rates, water rates and government charges in relation to the [W] property are to be paid;
11.4Fourthly, the Husband shall receive a sum of $800,000.00;
11.5Fifthly, the Wife shall receive 45% of the balance and the Husband shall receive 55% of the balance.
15The Husband shall within 7 days of the date that final orders are made nominate a licensed real estate agent to act in relation to the sale of the [P] property (“the [P] agent”).
16The Wife shall within 7 days of the Husband’s nomination pursuant to Order 26, do all things and sign all necessary documents to cause the [P] and [Y] properties property to be listed with the [P] agent for sale by auction.
17The Wife shall instruct the [P] agent to cause the [P] property to be submitted to an auction sale within 6 weeks of the date that it is listed for auction with the [P] agent.
18The Wife and the Husband shall agree upon the reserve price for the auction sale of the [P] property at least 14 days prior to the date of the auction sale otherwise orders 30,31 and 32 shall operate, however, orders 30,31 and 32 shall not operate if agreement is reached between the parties in accordance with this order.
19The Husband shall immediately after the expiration of 14 days prior to the said auction sale do all acts and sign all necessary documents to request the [P] agent to recommend the reserve price for the auction sale of the [P] property.
20The Wife shall immediately do all acts and sign all necessary documents to accept the [P] agent’s recommendation in relation to the reserve price for the auction sale of the [P] property and shall sell the [P] property for such reserve price or such better price that may be bid at the auction sale
21The Wife shall do all acts and sign all necessary documents to instruct the [P] agent to cause the [P] property to be auctioned again every 60 days from the date of the preceding auction until it shall be sold, upon the same terms and conditions as stated in the abovementioned Orders in the event that the [P] property does not sell on the first occasion that it is offered for sale by auction, provided that the reserve price of the [P] property shall be reduced by 10% from the preceding reserve price on each occasion that the [P] property is submitted to auction.
22The Wife and the Husband shall do all acts and things and sign all necessary documents so that upon the settlement of the sale of the [P] property the proceeds of sale shall be disbursed in the following manner and priority:
22.1Firstly, the commission and the fees of the agent including advertising expenses, together with legal fees are to be paid;
22.2Secondly, any loan or loans secured by a mortgage or mortgages registered upon the title of the [P] property is/are to be repaid;
22.3Thirdly, council rates, water rates and government charges in relation to the [P] property are to be paid;
22.4Fourthly, the Wife shall receive 45% of the balance and the Husband shall receive 55% of the balance.
23The Husband shall within 7 days of the date that final orders are made nominate a licensed real estate agent to act in relation to the sale of the [Y] property (“the [Y] agent”).
24The Wife and Husband shall within 7 days of the Husband’s nomination pursuant to Order 26, do all things and sign all necessary documents to cause the [Y] property to be listed with the [Y] agent for sale by auction.
25The Wife shall instruct the [Y] agent to cause the [Y] property to be submitted to an auction sale within 6 weeks of the date that it is listed for auction with the [Y] agent.
26The Wife and the Husband shall agree upon the reserve price for the auction sale of the [Y] property at least 14 days prior to the date of the auction sale otherwise orders 30,31 and 32 shall operate, however, orders 30, 31 and 32 shall not operate if agreement is reached between the parties in accordance with this order.
27The Husband and Wife shall immediately after the expiration of 14 days prior to the said auction sale do all acts and sign all necessary documents to request the [Y] agent to recommend the reserve price for the auction sale of the [Y] property.
28The Wife and Husband shall immediately do all acts and sign all necessary documents to accept the [Y] agent’s recommendation in relation to the reserve price for the auction sale of the [Y] property and shall sell the [Y] property for such reserve price or such better price that may be bid at the auction sale.
29The Wife shall do all acts and sign all necessary documents to instruct the [Y] agent to cause the [Y] property to be auctioned again every 60 days from the date of the preceding auction until it shall be sold, upon the same terms and conditions as stated in the abovementioned Orders in the event that the [Y] property does not sell on the first occasion that it is offered for sale by auction, provided that the reserve price of the [Y] property shall be reduced by 10% from the preceding reserve price on each occasion that the [Y] property is submitted to auction.
30The Wife and the Husband shall do all acts and things and sign all necessary documents so that upon the settlement of the sale of the [Y] property the proceeds of sale shall be disbursed in the following manner and priority:
30.1Firstly, the commission and the fees of the agent including advertising expenses, together with legal fees are to be paid;
30.2Secondly, any loan or loans secured by a mortgage or mortgages registered upon the title of the [Y] property is/are to be repaid;
30.3Thirdly, council rates, water rates and government charges in relation to the [Y] property are to be paid;
30.4Fourthly, the Wife shall receive 45% of the balance and the Husband shall receive 55% of the balance.
31The Wife and the Husband shall do all things and sign all necessary documents to cause the company [Whelan] Group Pty Limited to transfer to the Wife its right title and interest in a […] Jaguar motor vehicle registered number […] provided that the Wife shall pay for all costs of and incidental to the transfer and registration of the said motor vehicle into her name including but not limited to stamp duty, registration fees and insurances.
32The Wife shall indemnify [Whelan] Group Pty Limited and/or the Husband in the event that any taxation is incurred by the company as a result of the transfer of the said Jaguar motor vehicle to her by the company.
33The Husband shall within 7 days of the date that final orders are made transfer to the Husband her right title and interest in all shares held in her name in the company [Whelan] Group Pty Limited.
34The Husband shall within 7 days of the date that final orders are made resign her directorship in the company [Whelan] Group Pty Limited and to give effect to this order she shall do all things and shall prepare and sign all necessary documents to resign her directorship in the company [Whelan] Group Pty Limited.
35The Wife shall indemnify the Husband in relation to all and any outstanding taxation liabilities of the company [Whelan] Group Pty Limited that may have accrued regardless of whether the same have yet been assessed up to and including the date that final orders are made.
36The Wife shall pay all loan repayments in relation to the loan secured by mortgage upon the title of the property situate and known as [Y] in the State of New South Wales as and when such payments fall due until the settlement of the sale of the [W] property and the distribution to the parties of the net proceeds of the sale of the same.
37The Wife shall pay all expenses of and incidental to the [W] properties until the settlement of the sale of the same and the distribution to the parties of the net proceeds of the sale of the same including but not limited to all municipal rates, water rates, taxes, insurances and maintenance expenses.
38The Wife and the Husband are restrained from mortgaging or encumbering the [W] properties unless both parties consent in writing.
39The Husband shall within 7 days of the date that final orders are made transfer to the Wife his right title and interest in all shares held in his name in the company [W Breeding] Pty Limited.
40The Wife shall indemnify the Husband in relation to all and any outstanding taxation liabilities of the company [W Breeding] Pty Limited that may have accrued regardless of whether the same have yet been assessed up to and including the date that final orders are made.
41The Wife shall prepare 2 lists to describe the whole of the personalty belonging to the parties jointly or individually other than the Wife’s and the Husband’s jewellery, clothing and personal items that was contained at the [W] property, the [Y] Unit and the [P] property as at the date of a valuation by [Mr A] on 6 November, 2007 within 14 days of the date that final orders are made.
42The Wife shall serve the 2 lists upon the Husband within 21 days of the date that final orders are made.
43The Husband shall choose one list or the other and is declared the sole legal and beneficial owner of the items in the list that he shall choose.
44The Wife shall deliver to the Husband or his nominee the items in the list that the Husband shall choose, in good condition, within 28 days of the date that final orders are made.
45The Wife and the Husband shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the power, possession or control of such party to which that party is beneficially entitled as at the date that final orders are made other than the items of property which have been described in other Orders and for that purpose, insurance policies are deemed to be in the possession of the beneficiary thereof.
46The Wife shall pay to the Husband a sum of $750.00 per week by way of spousal maintenance until the settlement of the sale of the [W] property and the distribution to the parties of the net proceeds of the sale of the same.
47In the event that either party refuses or neglects to sign any document required to be signed to comply with these Orders, the Registrar or a Deputy Registrar of any registry of the Family Court of Australia shall execute all deeds and documents in the name of the Wife or the Husband and shall do all acts and things necessary to give validity and operation to these Orders pursuant to Section 106A of the Family Law Act.
48Leave to apply on 7 days notice.
In final submissions, counsel for the husband indicated that the husband’s final position was that he wanted a 50/50 division of the assets with a sale of all real estate.
In the event that the wife’s application was successful and she retained P property and Lot 2W then he would want the option of retaining Lot 1 rather than having it sold.
CREDIT
Counsel for the husband made no direct submissions in relation to the credit of the parties. The wife’s lawyer submitted that I would prefer the evidence of the wife in preference to the evidence of the husband.
Husband
The husband did not give his evidence in a straight forward manner. In relation to several topics, I found his oral evidence implausible.
The husband gave inconsistent evidence about how much cash was retained from income producing activities in the home at any one time.
Initially the husband told me that he never kept more than a few thousand dollars of cash in the house in the following exchange:
Right. So the maximum amount of cash you would have had in the safe at any time was a thousand, apart from putting it there for the purpose of taking it to the bank the next (day) or something like that? The cash that you just kept lying around there?---No, sometimes it was more.
Well - - - ?---A few thousand.
A few thousand; but not more than a few thousand just lying around not banked?---Not large amounts; not 10 or 20 or 30 or anything like that.
Righto?---Definitely not.
During his oral evidence the husband, without referring to it on any previous occasion in his evidence (the parties initially filed evidence in this matter in 2007) asserted that at the time of separation in July 2006 there was an amount of cash stored in the roof near the man-hole in the parties’ walk-in robe off the main bedroom at W. He asserted that this money was kept partly in a large brown envelope and partly in loose bundles strewn around the roof in a gap created by the removal of an insulation bat. At first, the husband was unsure as to how much cash he claimed was in the roof, initially describing it as “a bit” and later “a lot” and finally saying “it may well have been” close to $150,000. The husband described in oral evidence how on 1 September 2006 when he attended the property, he got a ladder from the garage of the property and went into the roof and checked for the cash. His evidence was that he discovered at that time that the money was missing. He implied that the wife had taken it. He had not, up until that time, sought to add back that asset on the balance sheet against the wife (despite the number of other add backs that have been claimed by the husband against the wife in this matter). This evidence by the husband was not addressed by his counsel in final submissions and there was no assertion by counsel for the husband that there should be any add back in relation to these monies against the wife.
That might have been because of other evidence that the husband gave orally on another topic. The husband was asked questions in relation to an incident that occurred some time prior to 3 July 2006 when the wife says the husband had been drinking and entered her bedroom at about 3am and urinated on the sheep skin rug at the foot of the bed. The husband denied that this incident had ever occurred although he admitted the stain on the sheep skin rug. The husband said the stain was the result of storm damage, after tiles above the bedroom were broken and water came in, and that GIO had come to fix the damage. The husband and I then had the following exchange:
So was there a hole in the roof above your bedroom, was there?‑‑‑There was a big stain where it was dripping down.
Yes. So the water was coming through the broken tiles?‑‑‑And through the plaster.
And through the plaster above your bedroom?‑‑‑Correct.
And, what, workmen came out and fixed the tiles?‑‑‑A team of guys came out.
Right, and to fix the plaster?‑‑‑Sorry?
And fixed the plaster?‑‑‑Yes.
Right, okay. Did you bother to remove the cash from the roof at that point?‑‑‑No.
So you left ‑ ‑ ‑?‑‑‑Your Honour - no, your Honour ‑ ‑ ‑
You left a hundred to a hundred and ‑ ‑ ‑?‑‑‑No, no. Yes, that was removed. Sorry, yes, it was.
You left a hundred to a hundred and fifty thousand dollars up there whilst this team ‑ ‑ ‑?‑‑‑I didn’t realise what you were alluding to.
No. I know you didn’t?‑‑‑But, yes, I did move it.
You moved it?‑‑‑Well, we moved it, actually.
You both moved it?‑‑‑Yes.
Where did you move it to?‑‑‑In the office.
Right. Then put it back once the team of workmen left?‑‑‑Correct.
I find that the husband’s evidence that he and the wife had removed the cash together and that the cash had then been put back after the repair work had been completed, is untruthful. I find that the husband had urinated on the sheep skin rug.
The wife conceded that on an occasion well prior to the separation, she was aware the husband had kept about $20,000 in the roof but that money had been expended well before the date of separation. I find the husband’s evidence about the cash amount of $100,000 - $150,000 in the roof, which he implied had been removed by the wife, to be a fabrication.
The husband gave evidence about what he did when he attended the property on 1 September 2006 after the separation at a time when he knew the wife was overseas. The husband originally went to the W property at this time with the police. The husband says the police were originally there for about three quarters of an hour to an hour before they left the property. The husband spent the first ten to fifteen minutes speaking to his father-in-law. He was in the house, with the police there, for the first time for about half an hour to three quarters of an hour. The husband had also organised the attendance of a firm of removalists. A friend of the husband, Mr M was also present (Mr M had put on an affidavit but was unavailable for cross examination and his affidavit was not read).
The parties’ son D then attended the property and he was there for about half an hour when the husband called the police back to the property. It took the police about a quarter of an hour to turn up and the police gave the husband about a quarter of an hour to remove what he wanted from the house and leave.
When I asked the husband why he didn’t mention the missing money to the police he said “Well, who would believe you, your Honour”. When I asked the husband why this money is not mentioned in any affidavit material, he said:
Because I didn’t think anybody would believe me, for a starter. I have spoken to it about my counsel and they – Bill Harrison wanted me to put it in there and I said, “Well, what’s the point. Nobody’s going to believe there was any cash there, anyway.”
The husband’s prediction that the court would not believe him has turned out to be accurate.
Consequently the husband had access to the home for at least an hour without D being there. The wife asserts that there was $18,500 in a tallboy in the matrimonial bedroom. The husband gave evidence that I found implausible which I deal with in greater detail below when discussing the add back claim by the wife for $18,500 against the husband and the add back claim by the wife against the husband for a diamond ring that has an insurance value of $25,000. I do not believe the husband’s evidence about what he did in the house at W on 1 September 2006.
I also have not accepted the husband’s evidence that the $11,000 which he deposited into his account shortly after 1 September 2006 came from monies won at the TAB. He had previously given evidence that he rarely used the TAB as a betting facility. As I explain later, I find that money came from a tallboy in the matrimonial home.
The husband failed in his written material to disclose his relationship with Ms F (I have guessed at the spelling of the woman’s name. It was not provided by the husband in any written document and I did not check the spelling with the husband when he gave his evidence orally). She was present in the back of the court room for much of the hearing. The husband’s evidence was that she spends two to three nights a week at his home and he spends other nights during the week at her home. There was also evidence of the sharing of expenses between them. The husband however failed to disclose the extent of their financial relationship.
The husband made blanket denials in respect of all incidents of physical family violence. I did not accept his evidence in this regard as being truthful.
The husband during his oral evidence also spoke of the wife in derogatory terms, referring to her as a psychopath, a liar, a lover of money and a person who entered into conspiracies with others.
Wife
I found the wife a far more reliable witness. She was prepared to make concessions. She refused to answer one question on the grounds that it would incriminate her but no inference can be drawn against her arising from that refusal. The wife was responsible for the agistment business operated on the property owned by the parties. It appears there is a claim in the 2006 tax return for the agistment business, an expense for rent in the sum of $52,000 in circumstances where no corresponding tax has been entered in the tax return of the owners of the property (the husband and the wife). Although this has the potential to impact upon her credit, this line of questioning was not pursued in cross examination by counsel for the husband. The tax return was prepared by an accountant and I have no evidence as to the level of the wife’s knowledge as to what the accountant did when preparing the tax return. I am not prepared to draw any adverse inference against the wife in respect of her credit based on the evidence I have in respect of that tax return.
I accepted the wife’s evidence in relation to her assertions in respect of family violence against her during the long period of the marriage. My impression of the wife when she was giving evidence about family violence was that she was telling the truth whereas I had the opposite impression when the husband was being asked questions about it.
Conclusion in relation to the credit of the husband and the wife
Where there is a difference in the evidence between the husband and the wife, I prefer the evidence of the wife unless I indicate otherwise because of other objective evidence on a particular issue.
D
D is a son of the parties. Counsel for the husband submitted that D should be seen as being in his mother’s camp. I accept that is so. Counsel for the husband also said I should warn myself about accepting the memory of an adult about an incident that took place when that adult was 9 years of age. D gave evidence about an incident that took place in 1998 when it was alleged that whilst the wife was driving a motor vehicle, the husband who was heavily intoxicated, grabbed her by the throat and then left the motor vehicle whilst it was moving. D related his recollection of this occasion and what happened at the W property after his father returned to the property that day in a chilling and compelling way. I was impressed by the clarity of D’s memory of this traumatic occasion. I have no reason to diminish the weight to be put on his evidence simply because he was relating a memory that he had when he was 9 years of age, given the manner in which the evidence was given.
Ms T
Ms T undertook cleaning and other work for the parties over the years and resided on one of the residences at W.
In final submissions, counsel for the husband challenged the evidence given by Ms T.
In cross examination, Ms T said that she would observe the husband betting by telephone on Thursdays, because that is when she attended to clean the house. In re-examination, Ms T said she recalled the husband was ‘always betting’ on the phone when she was present; he would ring a telephone number, say his number and then say “I’ll have 500 or 2000 on this”.
Counsel for the husband submitted that records for Sportingbet between 2004 and 2007 did not show regular bets by the husband of this magnitude on Thursdays. Whilst there is some merit in that submission, the Sportingbet’s records do show regular betting on a Thursday. The husband would usually bet amounts of $100, $200 or $300. There are however multiple bets in these amounts on any given Thursday. There are examples of larger bets, some of $500 or more. For example, on 1 January 2006 (a day on which the husband outlayed $10,870), bets of $200, $300, $500, $700, $1,000, $1,500 and $2,000 were made by the husband. An analysis of the Sportingbet records indicates that bets in the amount of $500 were not uncommon by the husband (although bets of $2,000 were). It is also the case that the husband may not have fully disclosed all the persons or organisations with whom he places bets.
Overall, I do not accept the submission by counsel for the husband that the gambling records fail to provide corroboration for Ms T’s evidence.
Ms O
Ms O is the wife’s cousin. They are very close. Counsel for the husband made the point in final submissions that I should treat Ms O as an unreliable historian because when she was giving evidence about when a particular conversation took place, she gave a date that was not chronologically possible. The conversation was about a contribution the wife’s father was to make to the purchase of the W property. That transaction did not take place until 1978. In cross examination, Ms O placed that conversation at a time before she moved to Queensland, which was no later than August/September 1975. Whilst I accept that Ms O could not have heard the conversation she reported at the time she reported, I am not prepared to discount the rest of her evidence, for that reason alone.
On the whole (notwithstanding the closeness to the wife), I found Ms O to be a straight forward witness. I accept that she has truthfully provided her memory of what she saw the husband do to the wife in 1974 at a barbeque, as she relates that memory in paragraphs 25 and 26 of her affidavit filed 5 September 2007. I find the husband’s denial of anything like that happening was either as a result of him lying or as a result of him being so intoxicated on that occasion he did not remember actually what he had done.
CHRONOLOGY
Statements made by me as opposed to assertions by one of the parties are findings of fact.
The parties met in 1970 and commenced living together in 1972.
In 1972 the husband purchased two blocks of land at E for $3,800 using his own funds and he sold those two blocks of land a few months after the purchase in 1972 for $5,800 and $5,700 respectively. The husband had these funds prior to the commencement of cohabitation.
At the date of cohabitation the wife was a nurse at a hospital. During this period the husband was looking for work.
The wife says that two to three months after cohabitation the husband assaulted her and that there were frequent verbal and physical assaults during the marriage which made contributions by the wife significantly more arduous and I will deal with the wife’s “Kennon” claim later in these reasons.
The parties married in 1974. The wife obtained employment at a doctor’s surgery and she then later worked a bank.
In 1974 the parties purchased a home at H for $27,000. A small deposit was provided from the parties’ savings and the balance came from a mortgage with Metropolitan Homes No. 24 Building Society. The wife’s father paid for the purchase and installation of air-conditioning and carpet for the home.
In August 1976 the wife ceased working for the bank when she was approximately six months pregnant with S.
In August 1976 the wife’s father gave the parties a race horse to train and shortly afterwards the wife’s father purchased a horse, Z, and registered it in the parties’ names. This horse won races and the parties paid money back to the father for the cost of the horse. The parties thereafter commenced work training horses and that continued until 1997.
S was born in 1976 and D was born in 1979.
In 1977 the parties commenced a trade business.
In 1980 the parties purchased two blocks of land at W. The purchase price was $34,000. One third of the purchase price was provided by the wife’s father (who was never repaid). The balance was borrowed by way of bridging finance, through a firm of solicitors, until a loan from the Commonwealth Bank was obtained. At the time of the purchase the land was vacant.
On 25 November 1981 H property was sold for $57,500. The proceeds were used to build a stable block on the W property.
After the purchase of W property, the husband trained and broke in horses full time.
In 1982 the parties built a two bedroom home (the first home on W) using borrowed funds. This was not the matrimonial home at the date of separation. The second home at W was built upon the same land at a later time. Until the first home on W was built, the husband and wife resided in a caravan on the property.
I accept the wife’s version that between 1983 and her death in October 1988, the wife’s mother lived with the parties in a mobile home which was purchased by the wife’s mother which was located on the W property. The mobile home remains upon the W property.
In 1986 a property at P was purchased in the wife’s name for a sum of $54,000. Some savings were used for this acquisition together with a borrowing from the National Australia Bank.
After the wife’s mother’s death in 1988, the mobile home was tenanted. The husband received all the rental proceeds until separation.
In 1989 the mortgage on P property was discharged. The wife says that the direct source of funds for the discharge came from her savings. The husband says that he repaid the whole of the outstanding balance of the loan secured by the mortgage on the title of the P property from winnings and prize money from a race horse named X. I deal with the husband’s gambling on an overall basis later in these reasons. The parties were both still working at the time the P property mortgage was discharged. Little turns on the difference in the parties’ evidence on this point.
In 1990 or 1991 the parties brought and sold land at O. A slight loss was incurred.
In 1990/1991 the parties purchased a property at R for $150,000. The property was subdivided and one of the lots was sold for $135,000. This repaid the borrowing initially used to purchase the land. The other lot was sold to S (who was then only aged about 15) on the basis that he paid the stamp duty for the transfer. S later sold this property and divided the proceeds between himself and his brother D.
In 1996 the husband obtained a position of employment with the New South Wales public service.
From 1996 the parties ran an agistment business from the W property and the 11 acres around their home. The husband concedes that this was firstly done in the wife’s name but then later (in 2002) through W Breeding Pty Ltd, a company formed for that purpose.
In 1997 the husband ceased work as a horse trainer.
In about 1997 the wife injured herself a Club. She subsequently received a payout of $130,000. The amount of the payout was largely used in 1999 towards the construction of the second home at W in which the parties lived at the time of separation.
In 1999 P property was rented out and the rent was applied to the mortgage on the W property.
In 2000/2001 the parties purchased a unit with the children in Sydney which was sold in February 2004 for a small loss.
In 2001 the husband told the wife that he had lost $40,000 gambling at Star City.
In May 2002 the husband had surgery and a partial hip replacement following injuries he incurred in an industrial accident at work.
In about September 2002 the husband was promoted to manager at the New South Wales government department.
In 2002 the parties started Whelan Group Pty Ltd which acquired a business at N for $2,050,000 with borrowings of $2,300,000.
In 2002 Whelan Breeding Pty Ltd took over the agistment business for a couple of years.
In 2003 Whelan Group Pty Ltd purchased a Mitsubishi Trion Utility vehicle worth $20,000 that was driven by the husband and has been retained by him.
On or about 24 June 2003 the husband received a compensation payout in the sum of about $30,000 and that money was used by the parties for living expenses.
In February 2004 the parties purchased nine shares in a time share for $14,000 using the wife’s American Express card.
On 9 June 2004 the parties caused Whelan Group Pty Ltd to purchase a new (demonstrator) Jaguar motor vehicle for a sum of $55,000. The wife drove this vehicle and has retained the vehicle.
On 22 September 2004 the husband took voluntary redundancy from the public service. He received a payout of $34,000. The husband retained and spent these monies himself. These monies were received by the husband prior to separation. The wife did not seek that these monies be added back onto the balance sheet. Nor did she seek that any adjustment be made in relation to these monies when contributions were considered.
In 2004 the wife recommenced the agistment business on her own account and the husband, following his retirement, was involved in maintaining the W property.
In 2004 the husband completed an electrical tagging and testing course at TAFE for the purpose of using those skills at the business at N.
Form 2004 the wife was the party who had the primary involvement in the agistment business.
From about late 2004 until 2007 the wife’s father came to live with the parties without paying rent. The husband says he looked on the wife’s father as if he was his own father. The wife asserts that from 2005 to 19 April 2006 the husband borrowed monies from her father and that by 19 April 2006 the amount borrowed totalled $85,000. On balance, I am unable on the evidence I have, to conclude this is so.
The husband says that paying tenants were evicted from the two bedroom home on the property to make room for the wife’s father and not only did he live there rent free but the parties paid for most of his food. I find the husband’s evidence about this difficult to accept. Even on the husband’s own evidence, the husband took the wife’s father to his financial institution to withdraw funds on a number of occasions and that the wife’s father was a good man. I find that the wife’s father did provide funds for his own upkeep as asserted by the wife and D.
In early 2005 the parties caused a sum of about $300,000 to be invested with Capital Access by Whelan Group Pty Ltd from company profits.
The parties then caused a further sum of $150,000 to be invested with Capital Access by Whelan Group Pty Ltd from company profits.
In the second half of 2005 the parties caused a further sum of $150,000 to be invested with Capital Access by Whelan Group Pty Ltd from company profits. This brought the investments with Capital Access to a sum of $600,000. This turned out to be a disastrous investment. These monies are essentially lost and both parties agree that any possibility of any partial recovery can be assigned to the husband at no value.
On 31 August 2005 N Business was sold for $2,900,000. The mortgage was paid out and there was $600,000 left over after the payment of the mortgage.
On 8 September 2005 a deed of option was granted by the parties to MO Pty Ltd for the sale of W property at an option price of $4,800,000. An option fee of $23,000 was paid. The option was to be exercised by 8 September 2009 but was not.
In February 2006 the wife entered into a contract for the construction of the new home at P for the sum of $350,000 with a building company. The amount of $350,000 came from:-
87.1.Redrawing on the mortgage secured on P property.
87.2.Borrowing $166,148 from Whelan Group Pty Ltd, of which $83,200 is asserted by the wife as representing monies owed by the husband to the wife’s father but which were redirected to her. Although I have accepted the wife’s credit overall, I was not comfortable with her assertion that there was an amount owing between the husband and her father of $83,200. The issue is of no relevance in any event because, given that this transaction took place prior to the separation, the wife does not seek any adjustment on the balance sheet. The wife seeks a finding that contributions were equal up until the date of separation. I would make that finding without needing to make a finding that a sum of $83,200 had been contributed on her behalf by her father to the assets of the parties.
87.3.The balance of the amount came from monies the wife had saved. The total cost of the construction was $524,328. The wife says additional amounts came from a loan to the wife from her father of $40,000 and the refinancing of the existing loan. D’s evidence corroborates that the $40,000 was returned to him by a cheque drawn by his mother in a card given to him by his grandfather shortly before his grandfather’s death.
In March 2006 Whelan Group Pty Ltd purchased Y property for $650,000, of which a deposit of $135,000 plus costs was provided by Whelan Group and $520,000 was borrowed from Westpac.
On 9 June 2006 Capital Access was placed into voluntary liquidation.
The parties separated under the one roof in February 2006.
The parties ceased to live under the one roof on 1 July 2006 when police charged the husband with assaulting the wife. The husband commenced to live at Y.
The wife says that at separation there was $183,000 remaining in the Whelan Group’s bank account. On 13 July 2006 the husband withdrew $16,000 and $65,000 and following that the wife withdrew $100,000 from the account. The husband says that the sum of $65,000 was kept on trust and used for the company expenses and a sum of $16,000 was retained by the husband for his usual dividends (and presumably used for living expenses).
From the date of separation the wife retained exclusive possession of W and P properties, and agistment and rental income from W property.
The husband resigned as a director of Whelan Breeding Pty Ltd on 22 July 2006.
On 21 August 2006 the wife went on an overseas holiday. The husband knew she was overseas and attended the W property on 1 September 2006. What he removed from the property on that day is a matter of contention. The wife says that when she came back to W property, amongst other things, she discovered jewellery and cash of $18,500 missing.
On 29 September 2006 the husband received a sum of $18,780.29 when he cashed in his AXA insurance policy.
On 6 October 2006 orders were made in the Family Court requiring the husband, amongst other things, to return items taken by him.
The husband made an interim application for spousal maintenance which was settled on an interim basis. On 19 January 2007 orders were made in the Family Court on an interim basis. Following the orders and in compliance with them, the wife refinanced with RAMS for $400,000. The wife paid out the existing Westpac debt and it is agreed there was a balance of $292,000 left. The wife paid: $113,727 for Whelan Group Pty Ltd’s tax debt; paid $4,000 per month for the mortgage on the Y unit in which the husband resided and until July 2007; and paid $1,000 per week by way of dividend to the husband. What happened to the balance will be discussed below when dealing with an add back to the balance sheet claimed by the husband.
On 8 February 2007 the husband received a sum of $32,393.96 from First State Super and placed that in his personal account.
On 22 May 2007 there was a creditor’s meeting of Capital Access and the wife asserts the husband abused her at that meeting.
In July 2007 the wife commenced a commercial cooking course at TAFE. Subsequently, she says she discovered that she is unable to stand up for sufficiently long periods to undertake commercial cooking.
APPROACH TAKEN
In this matter my task is to:
102.1.Identify and value the property, assets, financial resources and liabilities of the parties;
102.2.Identify relevant contributions and assess them;
102.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;
102.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.
BALANCE SHEET
Towards the end of the hearing I provided the parties with a draft document which set out item numbers on the balance sheet that we had been working with during the trial. That document will be Exhibit BB. That document has had two assets added and various current liabilities each party wishes to have counted. The final version of the balance sheet has slightly different item numbers to some of those used during the hearing. The first item number has been divided into two items because the property at W is two lots, one of which the wife wishes to retain. The husband’s position is that he wants the whole of W property sold, but if the wife is successful in her application to retain Lot 1, then the husband wishes to retain the other lot.
Where there has been a dispute in relation to the value of an item, I have given reasons for determining the value which has been placed on the item below and that value appears in the balance sheet in bold.
| Assets | ||||||
| Item no. | Title | Description | H value | W value | Agreed/ Determined | Value |
| 1 | J | Former matrimonial, Lot 2 , W | $935,000 | $935,000 | Agreed | $935,000 |
| 2 | J | Former matrimonial, Lot 1, W | $760,000 | $760,000 | Agreed | $760,000 |
| 3 | W | P property | $700,000 | $700,000 | Agreed | $700,000 |
| 4 | WG | Y unit | $715,000 | $715,000 | Agreed | $715,000 |
| 5 | WG | Jaguar | $22,000 | $22,000 | Agreed | $22,000 |
| 6 | WG | Mitsubishi | $9,000 | $9,000 | Agreed | $9,000 |
| 7 | WG | Liadro train | $10,000 | $10,000 | Agreed | $10,000 |
| 8 | WB | W Breeding Pty Ltd | $40,766 | $40,766 | Agreed | $40,766 |
| 9 | W | Loan account with W Breeding | $1,158 | $1,158 | Agreed | $1,158 |
| 10 | H | Loan account with W Breeding | $12,435 | $12,435 | Agreed | $12,435 |
| 11 | W | Agistment business | $0 | $0 | Agreed | $0 |
| 12 | H | Jewellery | $0 | $25,000 | Determined | $25,000 |
| 13 | W | Monies appropriated from the agistment business between 1.1.05 and 31.12.08 | $0 | $0 | Agreed | $0 |
| 14 | J | Addback Westpac Banking Corporation a/c in the name of K & S Whelan, a/c … | $0 | $0 | Agreed | $0 |
| 15 | W | Addback - discharge of mortgage to Westpac on P house | $0 | $0 | Agreed | $0 |
| 16 | W | $150,000 in relation to the ANZ access a/c | $150,000 | $0 | Determined | $0 |
| 17 | W | Addback sum for rental income from 3 dwellings on the W property (excluding the former matrimonial home) between about 1.1.05 and the current date at say $350 per week altogether (on average) | $80,000 | $0 | Determined | $0 |
| 18 | W | Current bank balance (to be provided) | $7,500 | $7,500 | Agreed | $7,500 |
| 19 | W | Contents in the former matrimonial home | $62,400 | $62,400 | Agreed | $62,400 |
| 20 | W | Paid legal expenses | $119,527 | $119,527 | Agreed | $119,527 |
| 21 | W | Superannuation | $3,970 | $3,970 | Agreed | $3,970 |
| 22 | H | Superannuation | $0 | $51,174 | Determined | $51,174 |
| 23 | H | Gambling losses | $0 | $91,143 | Determined | $91,143 |
| 24 | H | Paid legal expenses | $20,500 | $20,500 | Agreed | $20,500 |
| 25 | H | Household contents at Y | $10,704 | $10,704 | Agreed | $10,704 |
| 26 | W | Household contents at P | $7,040 | $7,040 | Agreed | $7,040 |
| 27 | H | Jewellery | $1,000 | $1,000 | Agreed | $1,000 |
| 28 | H | TAB Corp shares in the husband's name | $359 | $359 | Agreed | $359 |
| 29 | H | Bank account | $1,200 | $1,200 | Agreed | $1,200 |
| 30 | H | husband's other account | $475 | $475 | Agreed | $475 |
| 31 | H | AXA shares | $12,326 | $12,326 | Agreed | $12,326 |
| 32 | H | Cash taken on 1.9.06 | $0 | $18,500 | Determined | $18,500 |
| Total assets | $3,638,177 | |||||
| Liabilities | ||||||
| Item no. | Title | Description | H value | W value | Agreed/ Determined | Value |
| 33 | WG | Loan secured by mortgage upon the title of the unit at Y | $526,735 | $526,735 | Agreed | $526,735 |
| 34 | W | Loan secured by mortgage upon the title of the property at P | $381,457 | $381,457 | Agreed | $381,457 |
| 35 | W | Citibank | $24,000 | $0 | Determined | $0 |
| 36 | W | Go Mastercard | $0 | $3,500 | Determined | $0 |
| 37 | W | ANZ Visa (legal fees) | $11,000 | $11,000 | Agreed | $11,000 |
| 38 | W | NAB Mastercard (legal fees) | $11,000 | $11,000 | Agreed | $11,000 |
| 39 | W | GE Finance | $0 | $8,914 | Determined | $0 |
| 40 | H | Mr WS | $58,000 | $16,000 | Determined | $58,000 |
| 41 | H | NAB credit card | $13,479 | $0 | Determined | $0 |
| 42 | H | Mycard Citibank | $12,500 | $0 | Determined | $0 |
| 43 | H | Amex card | $1,080 | $0 | Determined | $0 |
| 44 | H | Jetstar liability | $300 | $0 | Determined | $0 |
| Total liabilities | $988,192 | |||||
| Total net assets | $2,649,985 | |||||
Item 12 - Jewellery and Item 32 - cash allegedly taken on 1 September 2006
The husband had access to the former matrimonial home on 1 September 2006. The wife says that when she left for overseas there was a dresser/tallboy in the matrimonial bedroom at W. It contained $18,500 in cash and also jewellery, including a diamond ring. It is agreed that the only evidence that I have in relation to the value of the diamond ring is the insurance value that was placed on that ring at the time of its acquisition by the parties in the sum of $25,000. It is the husband’s evidence that he emptied the whole of the contents of the tallboy prior to removing that piece of furniture from the matrimonial home on 1 September 2006.
The husband gave oral evidence that he otherwise checked the roof where he thought there was $100,000 to $150,000 in cash and it was his intention to remove that cash from the property on that day but he found there was none there. As I have already indicated, I do not accept his evidence about the cash being in the roof. I do however accept his evidence that he had an intention to remove any cash that he found on the property.
The husband deposited $11,000 in cash into his betting account that he controlled on 6 September 2009. The husband conceded that that was a cash deposit. When asked about the source of that deposit, his only explanation was that it might have been a win on the TAB. However, the husband had previously in evidence indicated that he rarely bet on the TAB so I discount that explanation as being unlikely. The most likely explanation for the source of the cash that the husband had was cash that he had obtained from the tallboy at the W property on 1 September.
Counsel for the husband made a submission that because the wife was away from the W property during an overseas holiday until mid September, another possible alternative explanation was that an unknown third party entered the home and took the money and the jewellery. In relation to the cash, I find that the window of opportunity for doing that was between 1 and 6 January, although a longer window of opportunity may have existed in respect of the jewellery. Counsel for the husband said the evidence against the husband was only circumstantial and other explanations should be considered. He cited the High Court authority in Chamberlain and Anor v R (1984) 51 ALR 225 which relates primarily to how circumstantial evidence should be treated in criminal cases. Chamberlain holds that where an inference is to be drawn from the circumstantial evidence, the circumstances must be established, in a criminal case, beyond reasonable doubt. In accepting the evidence of a particular fact, the evidence directly relating to that fact should not be considered in isolation, but in the light of the whole evidence, and an inference of guilt is to be drawn from a combination of facts, none of which when viewed alone, might support that inference.
Similarly, Gibbs CJ and Mason J make it clear that in a civil case, when circumstantial evidence is relied upon, those circumstances, when looked at as a whole, must raise a more probable inference in favour of what is alleged.
Counsel for the husband submits that the evidence does not disclose what condition the house was in when the wife returned from her overseas trip; whether or not there had been any interference with locks; whether there was any evidence of forced entry; how the husband had entered the premises; how he had left the premises; and whether or not the husband had secured the premises when he left on 1 September. I took it that counsel for the husband was submitting that this lack of evidence led to the possibility of constructing the alternate scenario that there had been a robbery of the house between 1 September and when the wife returned to the home once she had come back from overseas. That alternate scenario was not tested during the evidence. Whilst I concede that the evidence against the husband on this matter is mostly circumstantial, I find on balance, that as at 1 September 2006 there was in the tallboy, cash in the sum of $18,500 and jewellery which included a diamond ring. Further, on balance I find that the husband on 1 September 2009 took both the cash and the jewellery. I will accordingly add back $18,500 against the husband for item 32 and I will attribute an amount against the husband in relation to item 12. The insurance value of the diamond ring is the only evidence I have relevant to what any of the jewellery might have been worth and that value is $25,000.
For completeness, I should add that at the commencement of the hearing the husband asserted that the value of the wife’s jewellery overall was $100,000 but I have no evidence to support that contention. I make no finding that the wife has failed to disclose jewellery. I add no item onto the balance sheet in respect of the wife’s jewellery.
Item 16 - $150,000 add back in relation to the ANZ access account
The husband asserts that $150,000 should be added back against the wife arising out of borrowings from RAMS on P property. It is agreed that after the Westpac Bank mortgage was discharged when the wife refinanced with RAMS using P property as the security, there was an amount of $292,000 available to her. It is agreed that in March 2007 there was also $103,000 held in a term deposit by Whelan Group Pty Ltd. The total funds available to the wife were therefore in the sum of $395,000. The question is how was that money expended.
The following amounts seem to be agreed:
Payment of tax $113,000
Payment of dividends for the husband $17,000
Payment of mortgage by wife on the Y property $121,200
$251,200The wife asserts that she paid legal fees from these monies in the sum of $50,000 and I accept that is so. I further accept that that $50,000 is part of the wife’s paid legal expenses which will be counted against her at item 20. This amount of $50,000 to pay legal fees should not be double counted against the wife.
It is agreed that a further amount of $41,800 came from these monies to make a payment to D. The wife says that D came to receive this amount of $41,800 in the following circumstances. The wife gives evidence that, for the purposes of facilitating the construction of the P property, her father lent her an amount of $40,000. D also lent her a sum of $1,800. She drew a cheque to her father for $41,800. The mother’s father then gifted that amount to D. D gave cogent evidence as to the circumstances in which that payment by his grandfather was made to him. It was given to him with a card from his grandfather shortly before his grandfather’s death. I accept that evidence and I accept that that amount of $41,800 represented monies that had previously been lent to the wife by her father and to a small extent ($1,800) by D.
The discussion so far means that the wife has accounted for $343,000 ($251,200 + $50,000 + $41,800) out of the $395,000 available to her. The $52,000 difference is explained by the wife as being monies that were used for the building of the P property. The cost of construction paid to the builder for the dwelling at P was $350,000 but the wife says that the overall costs of developing P property were $524,328. P property (item 3) is on the balance sheet now at $700,000. Although I have not been able to achieve any precise accounting exercise, there is sufficient evidence from the wife to leave me to conclude that any shortfall under item 16 can be explained by monies that the wife used to improve the P asset.
Accordingly, I determine item 16 to be nil in terms of an add back against the wife.
Item 17 - Add back claimed by the husband against the wife for rental income from W
There were four dwellings on the W property. One was a shed and I accept the wife’s evidence that it was damaged in a storm and is no longer habitable.
Until the wife’s father died he lived in what was the original matrimonial home on the property.
The wife currently resides in the second bigger home on the property.
The wife refused to answer questions about why there was no rental income captured in her 2005 tax return on the basis that that answer might tend to incriminate her.
The husband has done a calculation of rental income which he asserts the wife should have achieved from her control of rental income from dwellings situated on the W properties from 1 January 2005 (a time before the parties had separated) to date. The husband has assumed that the average net weekly income from rent would have been $350 per week, a sum of about $80,000 in total over the period.
The husband did not establish the wife had received this amount.
There is modest rent recorded in the 2008 tax return by the wife as the rents received from W property are part of the overall income that has been received from the W property. The other part of the income that has been received from the W property is from the agistment of horses. The wife was not cross examined about the expenses of the business.
The wife has basically lived by relying substantially on funds generated from W property. In order to generate the income from the agistment business, personal exertion of the wife was required. I take the point that counsel for the husband makes that the wife does not necessarily expend an eight hour day every day attending to the horses, but while she is on the property it is a seven day a week responsibility. Counsel for the husband rightly makes the point that it appears in the 2006 tax year that there has been an expense of $52,000 claimed in circumstances where there is no corresponding accounting for the income to the owner of the property (which was the husband and the wife). Also, in the most recent tax year, a $33,000 interest account has been claimed by way of negatively gearing the P property. Counsel for the husband asserts that if those amounts are taken into account in that year, the profitability of the business takes on a different proportion and that is so. I find any monies coming from “rents” are part of what the wife has used for ordinary living expenses.
I do not intend to add back any sum for alleged undisclosed rental income in relation to the W property as against the wife.
Item 23 - gambling losses
The husband’s gambling is relevant firstly to a specific add back that the wife wishes to have placed on the balance sheet as a result of gambling losses for a specific period that has been documented primarily in the Sportingbet documentation, but also documentation from Star City Casino. Secondly, the wife in a more general way, wants some adjustment made on the basis the husband gambled and lost money throughout the marriage.
In relation specifically to item 23, it is agreed that the figures on the documentation that have been tendered from Sportingbet and from Star City Casino show a loss of $91,143.
The husband denied that he had any type of gambling problem.
The solicitor for the wife submitted that the Court will never know the actual extent of the losses that the husband incurred, particularly given that the husband has been to other gambling establishments from which records have not been produced.
The husband was asked some specific questions in relation to his gambling.
In relation to his betting with Sportingbet since 15 August 2009, the husband stated that it was “up and down”. He conceded that he is “a bit in the red”, however those losses relate to a period of several months. In relation to the documents produced by the husband in relation to Sportingbet, he conceded that there was a net loss of $5,365 between 15 August 2009 and 14 November 2009. The husband stated that a bet of $100 each way (meaning a total bet of $200) was a usual amount of the bet which he placed. He stated that at the odd time he would bet more than that. For example, a bet of $500 on “Horse V” on 19 September 2009; however the husband stated that that was a joint bet with a friend of his, Mr K. He stated that sometimes he is with friends who ask him to place a bet, and he rings up, provides his pin and identifies himself and places those bets. I note that there was a bet of $1,000 on 10 October 2009 in the Caulfield Cup. The husband stated that this was a losing bet. There was another bet on the same day of $1,000 which the husband conceded was also probably a losing bet. Overall, the husband conceded outlaying $3,050 on 10 October without any return.
Shortly after the separation, the husband had a win of $21,078 on a bet. However, in the next five weeks his loses were as follows:-
Week ending 6/8/06 $ 5,880
Week ending 13/8/06 3,340
Week ending 20/8/06 13,680
Week ending 27/8/06 7,500
Week ending 3/9/06 5,600
$36,000
The husband stated that he thinks his current balance with Sportingbet is $7,000 in the negative. There is a monthly settling of accounts, however the husband stated that he has told Sportingbet that he is currently awaiting a property settlement and they have given him a few months grace. The last time he settled up was three or four months ago.
The solicitor for the wife referred to the Full Court’s decision which is publically known as Hamilton & Thomas [2008] FamCAFC 8. At paragraph 37 Kay J said:
“In our view there was nothing so disproportionate in relation to the losses incurred by the parties in the lifestyle that they chose, that would make it appropriate for there to be an adjustment of the available capital upon the breakdown of the marriage. More is required than simply the existence of gambling losses. There needs in our view to be some element of wastage that is disproportionate to the positive contributions being made by each of the parties.”
The submission of counsel for the husband was that gambling was part of the lifestyle of the husband throughout the marriage and that it did not in any way impede the lifestyle the parties had during the marriage or impede lifestyle since.
The wife’s evidence however is that she objected to gambling during the marriage and that it was a struggle in the early part of the marriage. Ms T reported that when she saw the husband gambling “he used to tell me not to tell [the wife] because she’d shoot him because of the money”.
I accept the submission made by the solicitor for the wife that I cannot be confident that I know about the full extent of the husband’s gambling activities. I am satisfied that this is a case where there is some amount of wastage that is disproportionate to contributions made by the parties. I am also comfortably satisfied that as a matter of discretion, the agreed loss of $91,143 (which monies would otherwise have been available to the parties for distribution in these proceedings) should be properly added back against the husband.
Item 22 - husband’s superannuation; Item 40 - monies owed to Mr WS ($58,000); Item 41 - husband’s NAB debt; Item 42 - husband’s Mycard debt with Citibank; Item 43 - husband’s Amex debt; Item 44 - husband’s Jetstar debt
The husband seeks that the superannuation of $51,174 not be added back against him as he says he has expended it on living expenses. He also asks that the other debts in items 40 through to 44 be included as liabilities on the balance sheet in his favour, again because he says he has expended those monies on living expenses.
The analysis of the husband’s living expenses is hardly a precise exercise.
On the one hand I accept that the husband, since he has been away from the W property, has not had available to him the income stream from the property that was normally available to the parties jointly. On the other hand, the husband has not had to do anything at the W property to assist in the generation of the income through personal exertion and I will elsewhere make findings about the husband’s gambling activities and habits. Also, elsewhere I refer to the husband’s medical condition and his ability to earn personal exertion income. The husband does have the ability to earn a modest income as a handyman but records produced at the hearing would indicate that that has not been a source of income that he would be able to rely upon to sustain himself during the period since the separation. The parties had agreed to add back onto the balance sheet the husband’s superannuation in the sum of $51,174.
Counsel for the husband in final submissions however said that, in the circumstances of this matter, where the husband was denied an income from Whelan Group, an asset that he had helped build up, that he was entitled to use these resources and the other amounts that he has borrowed to fund his living expenses. The question of whether or not the superannuation that the husband has expended is left on the balance sheet needs to be considered in light of the other amounts the husband wants added back onto the balance sheet as liabilities (items 40 - 44). The most significant of those is the debt to Mr WS.
There is no doubt that the husband has spent money since separation, not only on living expenses, but also on gambling and travel. It would be inappropriate for me to add back the whole of these amounts.
Looking at the matter overall and taking a pragmatic approach, I will count the husband’s superannuation against him (as was originally agreed) but I will allow him the whole of the debt to Mr WS, but none of the other liabilities.
Mr WS has been lending money to the husband between February 2008 and December 2009, a period of one year and 10 months. The lending in that period has been about $38,000.
In relation to item 40 (the husband’s debt to Mr WS), the lawyer for the wife conceded that an amount of $16,000 from the money from Mr WS, was used by the husband for the purposes of paying legal fees (which are otherwise added back as a notional asset of the husband at item 24). It would be double counting not to allow that $16,000 liability. It was properly conceded and an amount of $16,000 will be added back in respect of item 40.
Consequently, it is only the balance amount of the debt to Mr WS in the sum of $42,000 that I am allowing the husband for living expenses.
Item 35 - wife’s Citibank credit card, item 36 - wife’s Go Mastercard; item 39 - wife’s GE Finance debt
The wife has claimed that these debts should be added back on the basis that they are debts arising out of her funding her living expenses. I do not think it is appropriate to add these debts back given that the wife has had available to her the income from the agistment operations and rents from W property.
Item 37 - wife’s ANZ Visa card ; Item 38 - wife’s NAB Mastercard for paid legal fees
Given that the wife’s paid legal fees appear on the balance sheet (item 20), it is agreed these borrowings which relate to paid legal fees should also be included on the balance sheet.
CONTRIBUTIONS
The wife submitted that a finding should be made that up until the date of separation, contributions were equal apart from the adjustment that should be made because her contributions were made significantly more arduous by the husband’s conduct throughout the marriage and as a result of the husband’s gambling activities. The adjustment that the wife seeks in relation to those matters is ten percent. The wife seeks a further adjustment of five percent for contributions made in the last three and a half years since the separation, relying in part upon the husband’s post separation gambling.
I consider I have made proper allowance for the husband’s gambling activities at item 23 on the balance sheet. That item will be counted against the husband.
It is not a matter of any great dispute (the husband in his affidavit concedes as much) that the wife was the person who over the period of the marriage, primarily cared for the children. She has worked in the agistment business post separation and has had the income of that business available to her (such income includes rental from the dwellings on the W property). The husband for most of the period since separation, has not paid rent for the Y property and has stopped paying the mortgage.
Initially the wife’s father paid one third of the deposit for the W land. The husband basically retired in 2004 and has not made a substantial contribution to the activities of the W property since the separation.
Apart from the wife’s claim that her contributions have been made significantly more arduous because of the husband’s behaviour, I find contributions to the current net assets were equal.
The wife’s “Kennon” claim
The wife asserts incidences of violence perpetrated by the husband against her. In a civil proceeding, a court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities (s 140(1) Evidence Act 1995 (Cth)).
The gravity of the matters alleged may be taken into account in deciding whether the court is so satisfied (s 140(2)(c) Evidence Act).
It is said clear or cogent proof is necessary where serious matters are alleged. That is not a matter which goes to the standard of proof but rather, is said to reflect a convention or perception that partners in a relationship do not ordinarily engage in violent behaviour and a court should not lightly find that they do (see Briginshaw v Briginshaw (1938) 60 CLR 336). It is not, however, inherently unlikely that a matter coming to this court, will involve family violence. In fact, a study in 2003 by the AIFS indicated that violence was a feature in 79 percent of the cases brought in the Family Court.
In Neat Holdings Pty Ltd v Karajon Holdings Pty Ltd (1992) 110 ALR 449), the High Court warned that a “clear and cogent” evidence test was likely to be unhelpful and even misleading.
The Full Court in Kennon & Kennon (1997) FLC 92-757 indicated that a course of violent conduct could be taken into account in property proceedings where it was demonstrated to have had a significant adverse impact upon a party’s contribution to the marriage or to put it another way, to have made his or her contributions significantly more arduous than they ought to have been.
Once findings of fact are made about one party’s conduct, it may or may not be possible to make findings about the physical or psychological effect of that conduct on the other party. Whether or not that is possible in order to establish a “Kennon” claim, the court needs to make some finding about the effect of the conduct of one party upon the contributions made by the other.
It may not be automatically assumed in a particular case that an effect on a party’s condition automatically means there is an effect upon the party’s contributions. For example, Strickland J’s commented in Spence and Spence [2008] FamCA 263 at [163]:
“There is no doubt that there was some domestic violence during the marriage, but there is no basis to find that “there was a course of violent conduct” by the husband which had “a significant adverse impact” upon the wife’s contributions to the marriage. There is simply no evidence provided by the wife to establish the link between any domestic violence by the husband and any impact on her contributions. Certainly the report of the psychologist does not assist in this regard. It does not assist the wife that she may be suffering from post-traumatic stress disorder. That says nothing about whether any conduct by the husband made her contributions “significantly more arduous than they ought to have been”. Thus, this is a claim that cannot succeed.”
I do not take his Honour to be saying that a particular proven course of conduct could not be one from which a court could infer that the victim’s contributions had been made significantly more arduous (but if his Honour was saying that I respectfully disagree).
The wife says that the husband verbally abused her, on a weekly basis. An example of this was at a party in the early period of their relationship where he yelled at her “You fucking cunt” and “You low life piece of shit”. Ms O recalls such an occasion at a party in 1974 where the husband threw a plate of food in the wife’s face and yelled “How do you expect me to eat this shit you fucking cunt?”
Ms T said she had witnessed the husband calling the wife names such as ‘fucking cunt’, ‘worthless slut’, ‘bitch’ and ‘miserable cow’.
The wife says that approximately two or three months after the cohabitation, the husband first assaulted her. While appearing to be under the influence of alcohol, he punched the wife to the right eye and temple and then continued to punch her a number of times to the face and head. She fell to the floor and he kicked her several times to the body and pulled her by the hair across the floor. The wife says that although she did not seek medical attention for cuts and bruising, she did not attend work for one week.
On another occasion, the husband gave her a black eye. The wife said this was noticed by people at the race course the next morning, and from then on the husband refrained from injuring the wife’s face.
On another occasion prior to 1998 the husband, while intoxicated, grabbed the wife around the neck while she was driving and the children were in the car. The wife pulled over and the husband exited the car. An affidavit of son D corroborates this story. The wife says that when she arrived home her mother told her that the husband had called and said he was going to kill the wife. A little later, the husband tried to break into the home of the wife’s mother while the wife and son D were there. He broke the handrail and cracked the glass door. The police were called on this occasion. The husband was charged. The wife withdrew the complaint upon attendance at the Local Court.
The wife recalls an incident where the husband grabbed her arms by her side and pushed her back against the wall several times while yelling at her. This resulted in bruises to her arm and back. Ms T said she had noticed bruises on the wife ‘on a number of occasions’ prior to separation. Ms O similarly remembers bruising to the wife’s neck, face, arms and thigh, some of them consistent with finger marks.
At some time during 1991 the wife alleges that she was assaulted by the husband in an incident where he bent her fingers back and she heard one of her fingers snap. This occurred while attending to the horses and the vet helped her splint her fingers. The wife said she could not obtain any corroborative evidence from the vet as she does not know where he works, nor the stable hand who resigned immediately following this event and later moved to New Zealand. Ms O recalls that the wife’s fingers were splinted.
In 2005 the wife says the husband assaulted her, gouging her eye and scratching her cornea. The wife told those from whom she sought medical treatment that she scratched her eye whilst sleeping. I accept this was an attempt at the time by the wife to cover up what had actually happened.
The wife recalled that shortly before separation, the husband assaulted her by throwing framed photographs at her. Ms T corroborates this story. Ms O recalls noticing holes in the walls, which were explained by the wife as being created when the husband had thrown a broom and a jewellery box at her.
The wife says on 1 July 2006 the husband threw a television and pen at her, swinging a broom at her and calling her ‘cunt’. Following this, interim AVO orders were made and assault charges laid but the husband was later acquitted of assault charges and the interim ADVO was not continued. The ADVO was in place for 7 months. The parties separated under the one roof on 2 July 2006.
The wife says that after separation, the husband went on a trip to Las Vegas where he went target shooting. He returned with the target sheet, which depicted the outline of a person, and it had two bullet holes in the head. The wife says the husband laminated this and displayed it in the garage, saying “Every time you get out of the car you can look at that and it will remind you that I can take you out anytime I like.” Ms T recalls seeing this target. The husband acknowledges it was displayed in the garage though denies saying anything threatening in relation to it. I do not accept his denial as being truthful.
The parties’ son D recalls ‘numerous’ acts of violence and abuse perpetrated by the husband towards the wife. This included being struck, having things thrown at her. D recalls seeing bruising on the mother. He also said he was assaulted himself and the wife intervened.
Since separation, the wife alleges various things that have happened to her of a harassing nature. The wife details threats made by the husband that imply that the husband was the perpetrator of these events.
The wife says she has depression. There is some evidence of the emotional impact of the husband’s conduct upon the wife: Ms O said that when the wife was telling her about violent occasions she ‘appeared upset and crying’; there were times when injuries meant the wife had to ask a neighbour to perform tasks for her and another time she took a break to P; D said that because of the violence he ran away 4 times and eventually went to boarding school – where fees were paid by the wife from the livestock breeding program.
Conclusions about the wife’s “Kennon” claim
I accept the evidence from the wife and the witnesses who corroborate her allegations of a history of violence and abusive conduct by the husband towards the wife during the time that they were together. The evidence substantiates a pattern of behaviour that commenced at the beginning of the marriage and was a feature of the relationship between the husband and wife throughout their many years together. There is some direct evidence of the practical and emotional effect the husband’s conduct had on the wife. I am in the context of this case prepared to infer that the proven history of the husband’s violence, in fact, meant that the contributions for which the husband concedes the wife made, were made in circumstances, where they were significantly more arduous as a result of the husband’s conduct than they would have otherwise been if he had not behaved in the way that he did. I am comfortably satisfied that the increased contributions by the wife entitled her to the adjustment of 10 percent which is sought by her.
Gambling
The husband’s gambling has been discussed above and I have added back an amount of $91,143 in respect of it (item 23). I have to be cautious not to double count. The $91,000 relates to a calculation derived from the records from Sportingbet Australia and from the Star City records (an approximate period from 2004 to 2007). I find that the husband did consistently gamble throughout the marriage and I am satisfied that that gambling activity meant that there were less assets as at the date of separation than there would otherwise have been had the husband not involved himself in gambling activities. I am not able to put any figure on further loses apart from those that I have quantified at item 23.
Investment losses
Notwithstanding the wife’s oral evidence in the first part of the hearing, it was agreed during final submissions that the parties should be equally responsible for the loss of $600,000 by way of their investment in Capital Access. Whilst that investment was probably reckless and notwithstanding the wife’s misgivings, she voluntarily agreed to jointly invest into that activity.
Conclusions in relation to contributions
Overall the wife sought a 65/35 adjustment of the assets based on the contributions of the parties to date of trial.
The husband’s position was that the adjustment should be 50/50.
I find that the contributions to the asset pool, looked at on a global basis as at the date of hearing, to be 50/50 had it not been for the adjustment that I have foreshadowed based on the conclusion that the husband’s behaviour during the marriage had made the wife’s contributions significantly more arduous. Having taken those circumstances into account, I find that an appropriate adjustment based on contributions is 60/40 in favour of the wife.
SECTION 79(4)(d) - (g) MATTERS
Both parties submitted that there should not be any adjustment for s 79(4)(d) - (g) matters. The wife however made that submission from the position of having submitted that the adjustment based on contributions should be 65/35 in her favour. The husband made that submission from the position of seeking an equal adjustment based on contributions between the parties.
The wife says that she finds it increasingly difficult to perform physical duties in relation to the horse business, especially in adverse weather. In response to this difficulty she began to train as a commercial cook, but found standing up for long periods of time painful.
The wife experiences back pain that means she cannot sit or drive for long periods and has difficulty sleeping. She also says she has a lack or sensory feeling in her hand. This results in her constantly dropping things, and she is not able to properly grip horses’ reins.
The wife says she also has difficulty with her foot which causes shooting pains. She has adapted her walking to avoid the pains but this has resulted in scoliosis of the spine.
The wife also suffers from depression, high blood pressure and alopecia (hair loss).
The husband says he had an industrial accident in 2002 which resulted in a partial hip replacement, and the ongoing effects of this are severe pain and weakness in his right hip. The husband says he is unable to lift more than a moderate weight, cannot sit or drive for long periods, and cannot run or walk long distances.
The husband also complains of severe pain in his neck and lower back requiring injections and pain killers, asthma requiring ventalin, hiatus hernia, and high cholesterol.
The husband says that as a result of such conditions, he can no longer lead horses, or work in an occupation requiring lifting or extended sitting.
The husband’s doctor was not called to give evidence (he was apparently walking in the hills of Victoria). The husband is not totally unfit to work. He has the capacity to work as a handyman. In 2006 he worked for 6-8 weeks, for 6-8 hours a day, building architraves. He has recently worked on an awning at Ms F’s house.
In oral evidence, the husband disclosed that he had walked one and a half kilometres to a Townsville Casino. He has an active sex life although he indicated that activity was hampered by back pain. I find he still has the capacity to do some handyman work and I am not satisfied I have been fully informed as to all the work he had done in recent years.
The wife mentions that although the husband has said he cannot engage in any clerical, driving or labouring work, he was working in clerical work up to three years after the accident, and left as a result of retrenchment rather than injury.
I have not been given any satisfactory detail as to how the husband and Ms F organise their financial affairs.
Conclusion in relation to s 79(4)(d) - (g) matters
The most significant feature looking forward is the disparity in the assets between the parties that are produced in relation to looking at a contribution finding. The wife will receive 10 percent more than an equal division of the assets and the husband will receive 10 percent less than the equal division of the assets. There will be a difference in the assets they receive in the approximate sum of $530,000. I find it is appropriate to make an adjustment in the husband’s favour of 2.5 percent, having considered all the s 79(4)(d) – (g) FLA matters but giving particular weight to that disparity.
JUST AND EQUITABLE
Based on the findings I have made in respect of contributions and s 79(4)(d) - (g) matters, the overall division of assets between the parties would be 57.5 percent to the wife and 42.5 percent to the husband.
That division of assets could be achieved by distributing assets and liabilities between the parties in accordance with the following table:
| H gets 42.5% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 2 | Former matrimonial, Lot 1 W | 100% | $760,000 |
| 4 | Y unit | 100% | $715,000 |
| 6 | Mitsubishi | 100% | $9,000 |
| 12 | Jewellery | 100% | $25,000 |
| 22 | Superannuation | 100% | $51,174 |
| 23 | Gambling losses | 100% | $91,143 |
| 24 | Paid legal expenses | 100% | $20,500 |
| 25 | Household contents at Y | 100% | $10,704 |
| 28 | TAB Corp shares in the husband's name | 100% | $359 |
| 29 | Bank account | 100% | $1,200 |
| 30 | husband's other account | 100% | $475 |
| 31 | AXA shares | 100% | $12,326 |
| 32 | Cash taken on 1.9.06 | 100% | $18,500 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 33 | Loan secured by mortgage upon the title of they unit | 100% | $526,735 |
| 40 | Mr WS | 100% | $58,000 |
| 41 | NAB credit card | 100% | $0 |
| 42 | Mycard Citibank | 100% | $0 |
| 43 | Amex card | 100% | $0 |
| 44 | Jetstar liability | 100% | $0 |
| H pays W | $4,402 | ||
| Net Assets | $1,126,244 | ||
| W gets 57.5% | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | Former matrimonial, Lot 2 W | 100% | $935,000 |
| 3 | P property | 100% | $700,000 |
| 5 | Jaguar | 100% | $22,000 |
| 7 | Liadro train | 100% | $10,000 |
| 8 | W Breeding Pty Ltd | 100% | $40,766 |
| 9 | Loan account with W Breeding | 100% | $1,158 |
| 10 | Loan account with W Breeding | 100% | $12,435 |
| 11 | Agistment business | 100% | $0 |
| 13 | Monies appropriated from the agistment business between 1.1.05 and 31.12.08 | 100% | $0 |
| 14 | Add back Westpac Banking Corporation a/c in the name of K & S Whelan, a/c … | 100% | $0 |
| 15 | Add back - discharge of mortgage to Westpac on P house | 100% | $0 |
| 16 | $150,000 in relation to the ANZ access a/c | 100% | $0 |
| 17 | Add back sum for rental income from 3 dwellings on the W property (excluding the former matrimonial home) between about 1.1.05 and the current date at say $350 per week altogether (on average) | 100% | $0 |
| 18 | current bank balance (to be provided) | 100% | $7,500 |
| 19 | Contents in the former matrimonial home | 100% | $62,400 |
| 20 | Paid legal expenses | 100% | $119,527 |
| 21 | Superannuation | 100% | $3,970 |
| 26 | Household contents at P | 100% | $7,040 |
| 27 | Jewellery | 100% | $1,000 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 34 | Loan secured by mortgage upon the title of the property P | 100% | $381,457 |
| 35 | Citibank | 100% | $0 |
| 36 | Go Mastercard | 100% | $0 |
| 37 | ANZ Visa (legal fees) | 100% | $11,000 |
| 38 | NAB Mastercard (legal fees) | 100% | $11,000 |
| 39 | GE Finance | 100% | $0 |
| W receives | $4,402 | ||
| Net Assets | $1,523,741 | ||
It can be seen that in order to create a precise division in the percentages indicated, the husband would have to pay the wife $4,402. In the overall scheme of things, that is a de minimis amount. Standing back I find that if the assets are distributed in accordance with the above table (without any payment), that is a just and equitable outcome.
IMPLEMENTATION
I will require the husband to refinance the mortgage on the Y unit prior to the wife joining in causing Whelan Group to transfer the Y unit to the husband.
INTERIM SPOUSAL MAINTENANCE
The husband has made an application that the wife pay spousal maintenance to him until the distribution to the parties of the net proceeds of the sale he seeks of the W property. The W property is not to be sold unless of course the husband defaults in payments that he is required to make to the wife. On the other hand, I have found the husband does have an earning capacity and I have found that he has not fully disclosed the extent of that capacity. The husband also has had the benefit of occupancy of the Y unit. I otherwise refer to the discussion of factors relevant to s 75(2) matters earlier in the reasons. I find that the husband has not established a need for the wife to make maintenance payments to him on an interim basis. In addition, whilst the property at W does provide the wife an opportunity to earn some income to support herself, it does not provide a basis for the wife to have the capacity to pay spousal maintenance to the husband. I will dismiss that part of the husband’s application.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 30 June 2010
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