WITTON and WITTON
[2011] FCWAM 75
•6 DECEMBER 2011
JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150
TERRACE ROAD
ACT : FAMILY LAW ACT 1975
LOCATION : PERTH
CITATION : WITTON and WITTON [2011] FCWAM 75
CORAM : KAESER M
HEARD : 20 - 23 SEPTEMBER 2011
DELIVERED : 6 DECEMBER 2011
FILE NO/S : PTW 3485 of 2009
BETWEEN : WITTON
Applicant Husband
AND WITTON
Respondent Wife
Catchwords:
PROPERTY SETTLEMENT - Addbacks - Legal fees - Taxation liabilities - Division 7A loan
- Agreed contributions - Section 75(2) factors - Difference in income between parties - Spousal maintenance
Legislation:
Family Law (Superannuation) Regulations 2001
Family Law Act 1975 - s.72, s.74, s.75(2), s.79
Category: Not Reportable
Representation:
Counsel:
Applicant : Mr Hedges
Respondent : Mr Berry
Solicitors:
Applicant : Kim Wilson & Co
Respondent : Paterson & Dowding
Case(s) referred to in judgment(s):
Chorn & Hopkins (2004) FLC 93-204
DJM & JLM (1998) FLC 92-816
Farnell & Farnell (1996) FLC 92-681
Foda and Foda (1997) FLC 92-753
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Preliminary Matters:
1I am required to determine various property settlement, child support and spousal maintenance issues.
2At the commencement of this trial, I was required to determine some preliminary issues. One was in relation to the potential need to call the Husband’s current de facto partner (Ms [G]) to give evidence.
3 The Wife had issued a subpoena to Ms G, but had been unable to effect service.
The inference was that she had been avoiding service and that the Husband was implicit in ensuring that she could not be served.
4The Wife made an oral application for an order that the Husband disclose the whereabouts of his de facto partner.
5A further issue arose in relation to the inspection of Ms G’s Family Court file with her former partner. The solicitors for the Wife were granted permission to inspect that file by direction of a Judge. They have inspected the file and as a result say that Ms G should give evidence and the trial should be vacated if she is not able to be present.
6The Husband has lodged a complaint with the Court about the way in which leave was granted to inspect that file, and in particular, in relation to the information provided by the solicitor for the Wife in support of that request.
7That complaint does not fall to me to determine. In any event, “the horse has bolted”, as the solicitors have already inspected and are already privy to certain information.
8I was satisfied that the trial should proceed notwithstanding the likely lack of appearance of Ms G. The appropriate course was to proceed and allow adverse inferences to be potentially drawn against the Husband if appropriate.
9I also began hearing a Contravention application. The Husband alleged the Wife had breached various obligations as to disclosure pursuant to orders made in June
2011. The Wife pleaded guilty to one specific breach and on that basis, the Husband elected not to proceed with the balance of that application.
10 I provided my determination and reasons dealing with the contravention application at the end of the overall trial.
11 At the end of the trial, I made orders for closing submissions in writing.
12 On 7 October 2011, the Wife filed her closing submissions. She had sought orders in her Papers for the Judge that the [Beachside] property be sold and that she receive the net sale proceeds. If there was a shortfall she thought that the Husband
should pay that shortfall. She was content for the [Countryside] property to remain in the possession of the Husband. She sought splitting orders to transfer 100% of the Husband’s superannuation in the iPac fund to her.
13 The Wife also conceded that the parties should do all things necessary to legitimately minimise any tax that may arise.
14 On 21 October 2011, the Husband filed his closing submissions and a Minute of
Proposed Orders. In simple terms, it sought:
• The transfer of the Beachside block to the Husband.
•That the Husband indemnify the Wife in relation to the mortgages secured against that block.
•That the Wife resign from [M Pty Ltd], and the Husband indemnify her from any debts arising from her involvement in M Pty Ltd including the Division 7A loan and tax arising.
• That the Husband retain the Countryside property as part of [WFT] Pty Ltd.
• Each party to otherwise retain their own assets and debts and superannuation.
• That there be an allocation to lump sum spousal maintenance in the amount of
$50,000.00.
15 The Husband also sought orders in relation to children’s issues, but those issues were only before me for directions.
Outstanding interlocutory applications:
16 These were not pressed during the course of the trial and so are to be dismissed as part of the overall orders.
Background:
17 The Husband is a 45 year old medical practitioner. He has no significant health issues.
18 The Wife is 46 years old and is a nurse. She is in good health. She has worked on a casual basis with 3 organisations since separation.
19 The parties have two children, [Simon] (15) and [Tim] (10). Both attend [a private school in Perth].
20 They starting living together in 1991; married in 1994 and separated in June
2009. They had an earlier period of separation for 7 months in 2008.
21 In total, the parties cohabited for about 17 years.
22 The parties created a company called “[M Pty Ltd]” through which they channelled the Husband’s income. They remain equal shareholders and directors of M Pty Ltd.
Admitted evidence:
23 Professor Mulvey gave evidence which was not challenged to the effect that the Wife could be earning $72,422.00 per annum as a full time Registered Nurse. In his opinion there was plenty of work available for her.
Husband’s evidence generally:
24 In my view, the Husband was often not prepared to properly answer questions, where the answer was likely to be against his interests.
25 He seemed to delight in being vague and putting Counsel to proof on a range of issues, where a concession or explanation could have properly been made.
26 I do not accept that his state of knowledge of his affairs was as vague as he made out. He clearly is a person of substantial intellect and he has clearly managed his financial affairs for years with the aid of a personal banker.
27 One example was his attempt to refuse to accept the accuracy of a bank loan application because his personal banker filled it in. That approach does not take into account the fact that the document is based on information provided by the Husband and discussed with him.
28 The issue of the absence of Ms G was raised in closing submissions by the Wife.
She says she was deprived of the opportunity to test material aspects of the Husband’s evidence. I accept that and I conclude that the Husband’s evidence in relation to his dealings with Ms G is unsatisfactory. It is an example of his ability and approach in dealing with his income exactly as he sees fit without any regard to the consequences, either in terms of tax or the effect on the assets and debts of the parties. I will refer to this issue again later in these reasons.
Wife’s Evidence generally:
29 The Wife was somewhat argumentative in her answers. She seemed unable to answer many questions without justifying her position in some way.
30 She was steadfast in her position that the efforts she has made to obtain employment have been proper and she should not have to work any more given the commitments she has made (and wants to continue making) to the care of the children.
31 The children live in an equal shared care arrangement. It was put to the Wife that she could work during the 7 days each fortnight that she has the children in her care. That was on top of the 5 nights she currently works during the 7 days when the children are with the Husband.
32 She maintained that she needed to be available to the children in case they needed her help during school. She did not accept that she should have to work during those days in times that would not fit within school hours. She maintained her position that she should be available for the children before and after school. She said
she was open to employment within school hours when the children were with the
Husband, but maintained her opposition to working at all when they are with her.
33 The Wife professed a significant lack of knowledge and understanding about the financial affairs of the Husband. Cross examination revealed that, despite many offers, she had not properly taken the opportunity to speak to the accountant in any depth in order to gain such an understanding.
Dr [P]:
34 Dr P gave his evidence thoughtfully and I generally accept that evidence.
35 It is clear he has maintained a close personal friendship with the Wife, despite the end of their romantic relationship.
Husband’s Income:
36 Counsel for the Husband provided a schedule which purportedly set out the
Husband’s income for the 2006 to 2011 financial years.
37 That schedule does not accurately summarise the total income available to the
Husband.
38 Until half way through the 2011 financial year, the Husband operated his medical practice through M Pty Ltd. The proceeds of his personal exertion income went to M Pty Ltd and it paid him a salary/wage. The schedule refers to the salary/wage paid, and his personal tax deductions, which reduced his personal taxable income.
39 Until 2010, the schedule does not however refer to the net profit derived via M Pty Ltd and retained by that company. Half way through that financial year (on
1 January 2010) he ceased trading via M Pty Ltd and starting operating as a sole trader. The 2010 figures in the schedule include “Business Profit – Sole Trader”.
40 In 2011, the schedule refers to income derived as a sole trader. The Husband worked in that capacity for the entire financial year.
41 The Husband’s total income is therefore much higher than the schedule provides for 2006 to 2009. The retained profit has been accounted for by way of a Division 7A loan. The Husband notes that loan in his asset schedule. He also acknowledges there will be taxation consequences of treating those profits in that way. He accepts as part of the orders sought that he will indemnify the Wife in relation to the taxation that arises.
42 It is therefore entirely appropriate that I examine and take into account his total income, including the retained profits. In my view, the Husband has had access to that money as if it was his own. The lifestyle that he enjoyed during the marriage as a result of his medical practice has continued virtually unabated.
43 This approach by the Husband is carried through into his closing submissions.
He says his “income in July 2009 was $7,980 per week and his expenses were
$10,821 per week”.
44 I find that his actual income over those years is as set out in the table below.
| Financial Year | Operating Profit | Husband’s salary | Total |
| 2006 | $195,135 | $618,000 | $813,135 |
| 2007 | $113,558 | $560,000 | $673,558 |
| 2008 | $81,515 | $415,000 | $496,515 |
| 2009 | $170,008 | $460,000 | $630,008 |
| 2010 | $110,722 | $260,000 | $370,722 |
| 2011 | $41,245 | $514,186 | $555,431 |
45 By the end of the 2010 financial year there was $758,611.00 in retained profit in
M Pty Ltd.
46 The following sets out the Husband’s personal taxable income in each of the above years:
2006 $493,472.00 2007
$363,518.00
2008
$314,605.00
2009
$163,814.00
2010
$616,647.00
2011
$441,054.00
Child Support:
47 The Wife seeks a departure order which is opposed by the Husband.
48 It is important to determine this application before considering the property settlement and spousal maintenance issues.
49 This application was brought very late by the Wife. Those orders were not sought until the Minute of Orders for trial was filed, shortly prior to the start of the trial.
50 The Husband opposes the orders sought. He says he has been paying the additional amounts voluntarily so there is no need for any order.
51 I agree. The Court should only make orders where it is necessary to do so.
There has been no difficulty with the payment of child support and no evidence to show it may become a problem in the future. If it does, the Wife can seek an appropriate remedy. For now though I am not prepared to put in place the departure orders sought. The current assessment together with the current extra payments provide adequately for these children.
52 This is an issue that should have been canvassed much earlier.
53 In addition, there is no evidence of the expenses actually incurred for the children.
Property Settlement:
54 The Husband seeks a 20% division. The Wife seeks orders that will provide for more than the actual asset pool, including all of the available superannuation. The Husband opposes any form of superannuation splitting order being made.
55 I must follow a four-step process in dealing with property settlement under the
Family Law Act 1975. These are:
• assess the contributions made by each party to the assets;
• assess a range of factors set out in s 79(4)(d) to (g) of the Act; and
• consider whether the proposed orders are just and equitable.
56 The issue of addbacks takes on particular significance in this case. Effectively the Wife argues that by properly adding back various assets, a positive asset pool is created from which she can obtain the amount she seeks.
Asset Pool:
57 Counsel for the Husband handed up a schedule of assets and liabilities towards the start of the trial. It understandably took some time for Counsel for the Wife to be in a position to advise precisely which values were agreed and which were in dispute.
58 Setting aside for the moment issues to do with valuations, the following issues must be determined in relation to the pool itself.
59 A further schedule was included in the Husband’s closing submissions, which confirms his stance on certain issues.
Division 7A loan:
60 The Husband initially contended that the parties owe $359,137.58 to M Pty Ltd.
He listed it as an asset to M Pty Ltd in the schedule but counteracted that entry by also describing it as a debt of the parties that they owe to M Pty Ltd. As the trial progressed, further information was obtained that that Division 7A loan was in fact much higher.
61 No-one has seriously suggested to me that M Pty Ltd would ever call for that loan to be repaid. M Pty Ltd was an entity controlled by the parties and was used as a vehicle through which the Husband’s income was distributed. The Husband stopped using M Pty Ltd at the end of 2009, when he commenced work as a sole trader.
62 They parties (as the shareholders of M Pty Ltd) have the capacity to forgive that debt. The accrual of the Division 7A loan was a way in which the parties could account for the retained profit they were accumulating in M Pty Ltd. It built up a sizeable retained profit and the parties clearly had access to that money. Post separation the Husband had access to virtually all of it. It was therefore recorded as a loan from the parties to M Pty Ltd.
63 In Foda and Foda (1997) FLC 92-753, the Full Court found that the trial judge had incorrectly dealt with a loan account. His Honour deducted the amount in the Husband’s loan account ($188,000) from the net assets of the parties. The company was clearly the alter ego of the Husband. The Full Court said at 84,153:
“Transactions between the parties and the company should have been disregarded by His Honour. This is the effect of the company being the alter ego of the parties or one of them. There is no need for accounting between them.”
64 In this matter, M Pty Ltd was clearly the alter ego of the parties. Its only real purpose was to distribute the Husband’s personal service income as a surgeon and to attempt to obtain legitimate taxation benefits in doing so.
65 There is therefore no need in this matter to have regard to the amount of the loan account. It is not necessary to include it in the pool as an asset of M Pty Ltd, or as a liability of the parties to that company.
66 In the closing schedule, the Husband conceded this point and noted that the Division 7A loan should be excluded from the pool. That concession also applied to the amount lent to the Wife; the Husband’s 2011 tax; and his lease for the Audi.
67 A further legitimate issue is what are the taxation consequences of creating the
Division 7A loan? The loan balance at 9 June 2009 was $499,759.85. At 30 June
2011 it was $740,048.34.
Tax consequences of Division 7A loan:
68 The Husband’s position in relation to the liability is that he will indemnify the Wife as to any taxation liability arising from the treatment of drawings as a Division 7A loan. This was a reasonable position in the circumstances. The Husband’s approach in the past has been to pay whatever tax he owes from his income in later financial years and he has always had the capacity to do that.
69 The Husband’s earning capacity is virtually unchanged so he will have the ability to pay whatever tax that may arise. I use the term “may” as there is no evidence that tax will ever need to be paid on this loan. If it does arise, it may not crystallise for many years especially if the Husband starts using M Pty Ltd again after these proceedings are finalised.
70 The evidence (in Exhibit H6) was that:
Income tax payable on the loan amount at 9 June 2009 would be (my highlighting) $116,991.19. That assumes a fully franked dividend to the Husband. If the Wife declared a 50% dividend, the amount of overall tax payable would be (I find) less. The accountant acknowledges that he has no income details for the Wife upon which to base a calculation of the tax that might arise in that situation.
Income tax payable on the loan amount at 30 June 2011 would be (my highlighting) $174,440.10. That calculation is based on the same provisos as above.
At 30 June 2005, the loan account balance was $122,190.53. Since then, no tax debt has been levied in relation to the loan account. The loan account has simply been accruing. Interest has also been accruing.
71 The Wife was not prepared to agree to take a 50% dividend in order to reduce the overall amount payable. I consider however that she should do so. Given the indemnity offered by the Husband, it is entirely reasonable that she take necessary steps to reduce the overall debt. Given the way I intend to treat the Husband’s income after 1 January 2010 and the adding back of legal fees, I consider it appropriate to order the Wife to take a dividend in relation to the Division 7A loan as it stands at the time she ceases her ownership and involvement in that company.
72 The Husband wants the potential tax liability to be taken into account as a debt of the parties to reduce the overall size of the pool. The Wife says the potential debt should be ignored as:
a) There is no evidence that the Husband ever intends to declare a dividend and crystallize the debt.
b) It is an issue that only arose just prior to trial, having not been referred to in the Husband’s affidavit sworn the day before trial.
73 I accept that the way this potential debt has been addressed so close to trial when the Husband has had many months to arrange evidence on this issue is entirely unsatisfactory.
74 It is however a legitimate issue and I would not be doing justice to the parties to simply ignore this potential “elephant in the room”.
75 One of my primary tasks is to identify the assets and liabilities of the parties.
I must make findings about them before I move on to consider the various section 79 factors. I am bound to deal with the evidence as presented. There is a great deal of uncertainty about this tax issue. I cannot speculate on what may occur in relation to what is effectively a contingent debt. I am therefore not prepared to include the alleged tax as a debt to be taken into account. It remains something that may need to be dealt with in the event that a dividend is required down the track.
Consequences of ceasing to use [M] (WA) Pty Ltd:
76 This company is no longer used by the Husband, but is still in existence. If it was to be wound up, the potential tax issues would have to be resolved. There would appear to be no reason why the Husband could not again use that company as a vehicle for his personal exertion income. All that may be required is for the Wife to formally cease her involvement in that company. In fact the Husband seeks orders that the Wife resign from her position in M Pty Ltd and transfer her shares to him.
77 In addition, the Husband has a tax liability of $127,592.70 which arises from the income generated after ceasing to use M Pty Ltd at the end of 2009.
78 For reasons that will be explained, that debt is not to be taken into account in the calculation of the pool but is a real debt that the Husband must pay.
Valuation issues:
79 A number of concessions were made in relation to the pool of assets and liabilities.
80 The pool is as set out in the table in these reasons. The numbers in relation to bank accounts refers to the last 3 digits in the account number.
81 It is accepted that the Audi purchased by the Husband on a lease arrangement recently (and well after separation) is not to be included in the pool, and neither is the debt attached to that vehicle.
82 A watch also purchased well after separation is also not to be included.
83 The Wife disputes the “anticipated inheritance” set out in the Husband’s schedule. She says she is likely to receive an inheritance of about that amount but the actual amount depends upon the sale of a property in the UK and the net proceeds that become available.
84 The Wife also disputes the value ascribed by the Husband to her jewellery. This was not pressed and I do not intend to take into account the jewellery.
85 The amount alleged by the Husband in the schedule for his outstanding 2011 tax was updated during the course of the trial, as was the figure for his iPac superannuation.
Addbacks:
Legal Fees:
86 The Wife also argues that the amount of legal fees paid by the Husband should be added back into the pool as a notional asset. She says that this should clearly happen if I find that the Husband’s fees have been paid out of capital. If paid out of a mix of capital and income, she maintains that they should be added back. She also says that given the Husband’s circumstances, even if his fees have come out of his income, they should still be added back.
87 In Chorn & Hopkins (2004) FLC 93-204, the Full Court considered the leading authorities on add backs including Farnell & Farnell (1996) FLC 92-681 and DJM & JLM (1998) FLC 92-816.
88 In my view, the state of the law on this point is as follows:
a) If legal fees are to added back, then any loan taken out to pay those fees should normally be included as a liability.
b) In determining whether to add back paid legal fees, one must have regard to the source of the payment.
c) If the source of the payment of legal fees is a matrimonial asset in which the other party had a legitimate interest, then normally the amount paid for legal fees would be added back. In Farnell, the Husband accessed a joint bank account to pay legal fees. They were properly added back.
d) If the source of the payment of legal fees is income derived after separation, then normally the amount paid for legal fees would not be added back.
e) The Court has a discretion to go against what is described above as “normal” if the circumstances justify doing so, and the reasons are explained.
f) A future liability for unpaid legal fees is generally not taken into account as a liability of the parties in determining the pool.
g) Part of the rationale for these principles is that by not adding back the paid legal fees, that party has effectively had a premature distribution of property, which is unfair to the other party. It would
also have the effect of having the other party pay a contribution towards the costs of the party who has paid legal fees, without an order for costs being considered or made.
h) As the Full Court found in Chorn & Hopkins (supra) at 79,323, “funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions”.
89 This issue takes on particular significance given the size of the asset pool, the size of the Husband’s income, and the amount paid by both parties by way of legal fees to date.
90 Prior to separation, the Husband conducted his medical practice through M Pty
Ltd, in which each party had a legitimate interest. After separation and until 1 January
2010, the Husband continued using that company as the vehicle through which his income was funnelled for taxation purposes. That company had a potential value (in terms of the retained profit and any plant and equipment).
91 The way that business was run was that all of the fees received from patients went to M Pty Ltd. M Pty Ltd paid the Husband a wage and various other expenses. M Pty Ltd was liable for tax on its profits, and the Husband was liable for tax on his wage.
92 M Pty Ltd is conceded to be the alter ego of the parties. In my view, it was effectively the alter ego of the Husband. There is no evidence that the Wife (apart from potentially one occasion) ever accessed those funds. After separation, the Husband continued using M Pty Ltd as if it was his own. This included ceasing to use that company when he decided that it would be better to commence operating as a sole trader.
93 This finding is supported by the evidence that there was a significant level of mixing of the resources of M Pty Ltd and the Husband post separation. There were numerous examples in the Exhibits of personal expenses being paid from the business account and vice versa. To have to separate all the relevant transactions to try to determine precisely where the money came from to pay for the legal fees would be a virtually impossible task.
94 It is clear that the Husband treated M Pty Ltd resources as his own.
95 At separation in June 2009, the ‘752’ account had a credit balance of
$458,666.18. This was referred to as the “everyday account”, otherwise known as a portfolio loan account. From 7 June 2009 to 27 July 2009, the ‘752’ balance went from $458,666.17 to $350,712.00. After the Wife withdrew $50,000.00, the Husband then set up a new personal account in his sole name (‘341’). He deposited the remaining $300,453.82 into that new account from the ‘752’ account.
96 The current balance of the ‘341’ account is $3,270.00.
97 The withdrawal left $1,635.82 in the ‘752’ account. At 9 September 2011, it had a debit balance of $178,000.00. This is a debt that is taken into account in the pool.
98 The Macquarie margin lending loan of $282,818.00 was paid out on
24 December 2009. That stopped a substantial drain on the parties’ resources.
99 Since separation, the Husband has continued to earn the significant income referred to in these reasons. I acknowledge that he has met significant debts, but he has also lived an extravagant lifestyle (as the parties did during the marriage) without much regard to the Wife’s circumstances or the impact on the overall pool.
100 The significant debts included about $21,000.00 in mortgages and loans per month.
101 The Husband’s approach, in my view, was that he earned the money so was entitled to spend it. His argument in his closing submissions was that the overdraft amount had been “hovering around $170,000 since March 2010, and since May 2010, has been constant at debit $178,000. Since then, the Husband has continued to maintain this account at close to its maximum debit balance through his income”.
102 Analysing those comments, it seems that the Husband would accept that he in fact spent vast amounts from June 2009 to March 2010, a period of only 9 months. In that time, the Wife accessed $50,000.00 and the margin lending loan was repaid ($282,818.00) but the account went from $458,666.18 in June 2009 to a debit of
$178,000.00 in March 2010. The Wife’s amount; the margin loan and the mortgage repayments account for nowhere near that amount. Since March 2010, he has paid a number of expenses for him and the parties from his income, as the debt has stayed fairly constant since then.
103 Some notable payments made by the Husband since separation are:
a) Superannuation $25,000.00 in June 2009;
b) $46,700.00 to the builder (resulting in a credit). The original contract price was $89,980.00. Additional costs amounted to
$47,950.00, totalling $137,930.00. That total was paid in full in May 2009. No reason was advanced by the Husband as to why he paid a further $46,700.00 in June 2009.
c) From 11 August 2009 to 10 August 2011, he paid $187,343.14 in legal and Counsel Fees. Even in the circumstances of this case, that is an extraordinary amount. (As an aside the amount incurred by the Wife is also remarkable).
d) $50,000.00 to his mother in August 2009. This alleged loan was not referred to in earlier financial statements. I do not accept that the Husband had any legitimate liability to repay to his mother.
104 It is not proper that the Husband should have had access to this much money without adding some or all back into the pool, in circumstances where there is very little left of the pool now.
105 The ‘029’ account is the Husband’s business account. This account has been consistently used whether he operated through M Pty Ltd or in his own right.
106 In addition, I find the Husband’s evidence about the reissued tax refund cheque to be unreliable. He says he never received the original refund cheque issued in October 2009. The ATO reissued the cheque in the amount of $62,688.68 in January
2011. He says he sat on the cheque for a few weeks, but it was not cashed until 1 July
2011. I do not accept this as an example of mere forgetfulness. He was engaged in contentious litigation leading towards a trial. He ran a case that asserted he had no capacity to pay the Wife anything by way of property settlement because of the enormous debts of the parties. The impression he has tried to convey both to the Wife and to the Court is that he was struggling financially. To sit on a cheque of that size and for that long is not consistent with the behaviour of someone who is struggling to cope financially.
107 In my view, he sat on the cheque in an attempt to keep it from the eye of the Wife, concerned that it might be called upon either in increasing the asset pool or being an available resource from which to pay the Wife any property settlement.
108 Therefore, as a starting point, any legal fees paid by the Husband while that company was in operation should be treated as a premature distribution of funds to him. By not doing so would otherwise reduce the amount of money that could have been retained in M Pty Ltd and treated as an asset of the parties for distribution.
109 The fees paid by the Husband whilst M Pty Ltd was in operation were
$99,307.00.
110 After M Pty Ltd was no longer used (from 1 January 2011) the Husband has paid
$88,033.37 by way of legal fees. Counsel fees are on top of those amounts.
111 The next issue is whether I should also add back the further fees paid since M Pty Ltd was no longer used.
112 The income is no longer channelled through an entity in which the Wife has an interest. That however is something that came about from a unilateral decision by the Husband, which he says was based on advice from his accountant.
113 There is no evidence before me about the justification for that change. In my view, the most likely reason was to reduce any potential claim by the Wife, as she continued to have an interest in M Pty Ltd.
114 The Husband’s personal taxation liability from that period is his alone and will not be taken into account in the pool.
115 Had M Pty Ltd continued to be used for the entire period post separation, further distributions would have been made, and the Division 7A loan would have continued to grow. Given my earlier findings, that means there would currently be no actual income tax liability, but rather a potentially larger contingent liability.
116 The decision to commence trading as a sole trader was the Husband’s alone.
I am satisfied that he has had the capacity to set aside sufficient resources to pay his
current and future tax. In the past he has not had to worry about the Division 7A loan issue, as tax will only arose in relation to M Pty Ltd if a dividend is declared. The parties were able to successfully delay that issue. The Husband should have known, given his reliance on his accountant, that once he commenced operating as a sole trader, he would not have the same luxury of deferring any obligation to pay tax. He should have set aside resources and could have done so.
117 I do not accept the Husband was unable to set aside tax because of his commitments to the debts of the parties.
118 In the circumstances, the amount paid by way of legal fees since 1 January 2011 should also be added back. Despite this coming primarily from the Husband’s income, he has had the capacity to pay his fees from his resources. The Wife has not had the same capacity. He has continued to live a lifestyle without much regard to the consequences. His actions have created a situation where the parties have an insignificant asset pool to divide between them.
119 He has effectively given priority to the payment of his legal fees over other proper obligations.
120 The Wife received $50,000.00 from the joint bank account. She used
$30,000.00 of this on legal fees and the balance on what I consider to be reasonable living expenses. The $30,000.00 should clearly be added back into the pool. The Husband is critical of the Wife in removing this amount, but has no qualms about utilising vast amounts from M Pty Ltd which was a company, the profits of which the Wife was entitled to share in.
121 It would not be proper to also add back any further fees paid by the Wife because she has had to obtain finance to pay those amounts.
122 The Husband argues that none of the money he has accessed since separation from that company should be added back yet insists that the money removed by the Wife must be added back. That is an inconsistent and an unfair approach.
123 In my view the only way to be fair to both parties is to generally add back money they have accessed from assets in which they have a legitimate interest. That includes bank accounts and M Pty Ltd.
124 The Husband has paid $202,644.54 in legal fees to 19 September 2011,
$16,720.12 to earlier Counsel and $13,805.00 to his current Counsel. That amounts to
$219,364.66.
125 The Wife has paid $88,424.93 to date in fees and still owes $116,931.43.
126 Rather than go through the painstaking exercise of going through each and every expense to justify whether it should be treated as a proper expenses, I am satisfied that, given the amounts involved, and given the contrasting income of each party, that it would be fair to include:
a) The amounts the Husband has accessed and utilised for legal fees –
both whilst M Pty Ltd was being used and since; and
b) The amount the Wife obtained from the bank account that she then used to pay legal fees.
Future Inheritance:
127 The Wife’s parents have both died, so she will be receiving an inheritance.
The precise value is unknown as it depends on the sale price of property in the United Kingdom. It is going to be in the region of $60,000.00. The Husband argues this amount should be brought into the pool.
128 In my view, that amount has not yet been acquired. It is to be treated as an asset, but when the amount is actually to be received is not known. The Husband has made non contribution to that asset which is acquired post separation.
129 In light of all the circumstances, it is not proper to add that asset into the asset pool.
ATO funds:
130 The Wife claims that the amount paid by the Husband to the ATO just prior to trial should be added back into the pool.
131 The Husband incurred a tax debt of $178,640.10 for his personal taxation for the
2011 financial year. That was incurred on 16 September 2011 but the effective date is
23 April 2012. That debt is not due for payment until that date. The Husband has reduced that debt to $127,592.70.
132 The debt should not be taken into account and neither should the amount paid recently to reduce that debt.
133 The tax refund cheque of $62,688.00 should also not be added back. That would go towards the Husband’s personal taxation liability which also is not being included in the pool.
Money on trust:
134 Given my above findings, it is not appropriate to add back any amounts currently held on trust by each of the parties’ lawyers. They are funds derived from income or from a loan.
135 I find the pool of assets to be as set out below:
| No | ASSET | Husband | Wife |
| 1. | St George Bank account “341” | $3,270.00 | |
| 2. | St George Bank account “029” | $7,320.00 | |
| 3. | St George Bank account “249” | $2,321.00 | |
| 4. | St George Bank account “548” | $50.00 | |
| 5. | Westpac account “739” | $4,180.00 | |
| 6. | Beachside property | $1,150,000.00 | |
| 7. | St George Bank account “124” M Pty Ltd | $0.57 | |
| 8. | ANZ account “101” M Pty | $253.00 | |
| 9. | Countryside property [WFT] Investments as trustee for WFT Investment Trust | $910,000.00 | |
| 10. | Toyota Corolla Ascent | $3,500.00 | |
| 11. | Toyota Landcruiser | $25,000.00 | |
| 12. | Removed by Wife from joint bank account and used for legal fees | $30,000.00 | |
| 13. | Household Effects | $7,350.00 | |
| 14. | Household effects | $3,280.00 | |
| 15. | Household effects | $5,815.00 |
| 16. | Add back – legal fees paid by Husband | $233,169.66 |
| Total Assets | $2,342,178.23 | $43,331.00 |
| Liabilities | ||
| 1. | St George Bank home loan account “300” | $997,881.53 |
| 2. | St George Bank account “730” Husband – on lent to WFT Investments | $2,000.00 |
| 3. | St George Bank loan account | $178,000.00 |
| 4. | St George Bank Portfolio loan account “785” | $499,962.00 |
| 5. | St George Bank Portfolio loan account “734” | $500,000.00 |
| Total Liabilities | $2,177,843.53 | Nil |
| Total Net Assets (excluding superannuation) | $207,665.70 | |
| Superannuation | ||
| 1. | IPac Access at 15/4/11 | $244,059.20 |
| 2. | GESB West State | $3,207.00 |
| 3. | IPac Access | $35,900.00 |
| Total Superannuation | $247,266.20 | $35,900.00 |
| Net Assets and Superannuation | $490,831.90 |
Contributions:
136 Contributions are agreed at 50/50. Notwithstanding that, it is necessary to mention some of the evidence by way of further background.
137 The parties sold the [Inner City] property on 10 September 2008. The net proceeds of sale of $1,219,626 were paid into the ‘752’ account. At that time the account was in debit to the tune of $601,520.89. After the deposit the account had a credit balance of $618,105.98.
138 The parties bought the Beachside property at the same time for $1.8 million.
139 They moved into that house, intending to demolish the residence and rebuild on the site. They later moved into a [rental property] and remained there until separation.
140 The Husband remains living in the rental property. The Beachside property owned by the parties is still on the market for sale, but no offers have been received. They are not proceeding with the building.
141 In 2007, WFT Investments bought [the] Countryside property for $1,025,000.00.
That was funded by a mortgage.
142 Also in 2007, the parties invested in a Macquarie Geared Equity, which has not worked out well for them. The initial investment cost $9,300.00 per month. In 2008, they increased their exposure and took on further investments in that scheme costing a further $9,300.00 per month. The total exposure was $18,600.00 per month.
143 Even given the significant income of the Husband, this was a very significant financial burden.
144 The parties were able to extricate themselves from the first plan prior to the Global Financial Crisis hitting, but were adversely affected by the GFC decimating the value of their portfolio.
145 The Husband infers that he should receive some sort of credit for getting out of the 1st scheme prior to the GFC. I do not accept that any such credit (by way of recognising this as a contribution) is warranted. The Husband relied on the advice of his financial planner in setting up these plans and no doubt relied on his advice to get out of them.
146 The latter plan was eventually discharged in December 2009 at a cost of
$282,818.00. The money came from the remainder of the sale proceeds and from borrowing against the revolving line of credit. I find that the Wife was unreasonably tardy in agreeing to discharge that debt.
147 The Husband has made very substantial contributions by continuing to pay the ongoing costs of the Macquarie investments and the outstanding mortgages, but he has also spent income in a manner that means that the end result is a very significant debt. Had he been more frugal, the parties’ overall circumstances would have been much better and the value of his contributions would have been correspondingly higher.
148 The agreement of 50/50 in relation to contributions is therefore a reasonable one.
Section 75(2) Factors:
The age and state of health of each of the parties:
149 Neither party has any age nor health related issues that need to be taken into account.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment:
150 If the Wife was to retain the assets and superannuation set out in the above schedule, the following would be the result:
| No | ASSET | Wife |
| 1. | St George Bank account “249” | $2,321.00 |
| 2. | St George Bank account “548” | $50.00 |
| 3. | Westpac account “739” | $4,180.00 |
| 4. | Toyota Corolla Ascent | $3,500.00 |
| 5. | Removed by Wife from joint bank account and used for legal fees | $30,000.00 |
| 6. | Household effects | $3,280.00 |
| Total | $43,331.00 | |
| 7. | Superannuation IPac Access | $35,900.00 |
| Total superannuation and assets | $79,231.00 |
151 Of these though, the $30,000 has already been spent. She has very little left by way of either tangible assets or superannuation.
152 The Husband, by comparison, has a far superior income and earning capacity.
The Wife’s taxable income for 2010 was $27,669.00. In 2011, it was $56,795.00. Even taking into account the potential earning capacity of the Wife as a full time nurse, her earning capacity pales in comparison to that of the Husband.
153 Without a superannuation splitting order, the Wife has far less of a financial resource in the form of superannuation. Given the findings I have made there is a reasonable albeit a notional asset pool to divide between the parties. I am conscious however that the actual effect on the Husband is that he has significant debts. By adding back the paid legal fees, and by ignoring his personal tax, he is significantly in deficit.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years:
154 The parties have a shared care arrangement in place for the 2 children.
Commitments of each of the parties that are necessary to enable the party to support
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain:
155 Given earlier comments I consider that some of the expenses of the Husband go well beyond what is necessary to maintain himself. There have been however very large expenses that were essential, such as the margin loan until that was finally discharged.
156 The education expenses have been predominantly met by the Husband and that should continue.
The responsibilities of either party to support any other person:
157 The Husband is in a de facto relationship whereas I am satisfied that Wife is not.
The eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party:
158 Neither party is eligible for any such benefit.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable:
159 The parties enjoyed a very good standard of living during the marriage, which the Husband has generally maintained since separation. The Wife’s standard of living has been significantly reduced, despite the financial assistance from the Husband and her own employment.
The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant:
160 Not relevant.
The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party:
161 The Wife has made a substantial contribution to the ability of the Husband to maintain his income and earning capacity by attending to many of the household and child rearing activities during their relationship.
The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income:
162 There would be no effect on the Wife’s earning capacity by the payment of maintenance.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration:
163 The marriage existed for 17 years. The Wife has a good career and will be able to increase her workload when the children have completed their secondary education. The duration of the marriage has not adversely affected her earning capacity.
The need to protect a party who wishes to continue that party’s role as a parent:
164 The Wife wishes to maintain her current work commitments and they are reasonable as they allow her to maintain her role as parent.
165 The Husband is able to maintain his role as parent given his income and assistance from his de facto partner.
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation:
166 There was little cogent evidence about this in relation to the Husband. Given his income however it bore little relevance to the proceedings.
The terms of any order made or proposed to be made under section 79 in relation to the property of the parties
167 As noted above, the contribution based entitlements of the parties will be assessed on the basis there should be an equal division.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage:
168 The Husband pays child support of about $288.00 per week and pays the significant private school fees.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account:
169 There is nothing further of relevance.
Conclusions:
170 Clearly a very significant adjustment in the Wife’s favour is warranted.
The Husband concedes there should be a 20% adjustment in the Wife’s favour for s75(2) factors.
171 The Wife says that this is a case where she should receive virtually all or more than the current assets depending on my findings of the actual pool, including any addbacks.
172 The effect of adding back various assets as set out above is that a notionally positive asset pool is created.
173 The Husband argues that the Wife should not receive an amount well in excess of the actual asset pool. He claims there was no premature distribution of capital from the Husband’s income.
174 In my view, given the way in which the Husband treated his post separation income; the size of his income and the parties’ interests in M Pty Ltd, it is a valid exercise of discretion to allow the Wife property that would effectively exceed the actual asset pool.
175 I am confident that the Husband’s significant earnings will continue and he has the capacity to raise the amount proposed.
176 I have determined that the total net assets excluding superannuation amounts to
$207,665.70. Despite that involving notional addbacks, given the spending by the
Husband, I consider the Wife should receive 70% of the net assets.
177 That amounts to $145,365.99. Of that amount, the Wife will retain assets worth
$43,331.00. A payment from the Husband would be required in the amount of
$102,034.99.
178 The superannuation may be divided in accordance with the same percentage or may be treated differently. The total superannuation amounts to $283,166.20. Seventy percent equates to $198,216.34. Of that the Wife already has superannuation worth $35,900.00. A splitting order would be required for $162,316.34.
179 In my view that is an appropriate amount and an appropriate adjustment in the
Wife’s favour.
Are the orders just and equitable?
180 Had the entire asset pool been available for distribution I would have been minded to increase the percentage to the Wife. I am however mindful that the Husband is already wearing substantial debt and will face more as he will no doubt have to raise the necessary funds to pay the Wife her entitlement.
181 I have no doubt that he has the capacity to raise the amount required.
182 He will retain the major assets and be responsible for the current mortgages; his personal tax debt; any potential tax that might arise on the Division 7A loan and the repayments on the loan required to pay the Wife. It should be recalled that during the marriage and after separation he was also meeting the very substantial margin loan payments.
183 The Wife is left with a fairly modest asset pool which includes the payment from the Husband and has some superannuation to assist in the future.
184 I am satisfied, having sat back and considered the effect of my proposed orders that they are just and equitable.
Spousal Maintenance:
185 The Wife seeks orders that the Husband pay her spousal maintenance of
$894.00 per week to continue until the youngest child of the parties turns 18 years. That is another eight years away.
186 Some further background is that:
a) Prior to separation, the Wife worked in the Husband’s Medical
Practice (and was a director and shareholder of M Pty Ltd);
b) She was paid a wage of $803.00 per week by Pty Ltd.
c) After separation, the Husband and/or M Pty Ltd continued paying her $803.00 per week. That amount included the child support of
$288.00 per week.
d) On 20 April 2010, the Husband reduced that payment to
$288.00 per week, being the child support assessed amount only. At about the same time, he commenced a de facto relationship with Ms G.
e) The Wife filed an application on 17 May 2010, seeking the payments be reinstated and the Husband subsequently reinstated those payments.
f) He stopped them again on 27 April 2011. Since then he pays the assessed child support and extras towards the children but nothing towards the support of the Wife.
g) It has now been over 2 years since separation.
187 Section 72 of the Family Law Act 1975 provides that:
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
188 Section 74 provides that, in proceedings with respect to the maintenance of a party to a marriage, the Court may make such order as it considers proper for the provision of maintenance.
189 The Wife must therefore show that she cannot adequately support herself (and the extent to which she cannot do so). She must also show that the Husband has the capacity to pay.
190 I accept that the Wife could work more hours than she is currently doing. In the
7 days that she does not have the children, she works 5 night shifts. I accept that is reasonable. She could work some day shifts on week days when the children are with her as they are at school and are of an age where they can go to and from school by themselves.
191 The Wife’s view however is that she should not have to work when she has the children. I accept that for a long time during the marriage the parties put in place a routine where the Husband was able to continue his work as a surgeon unaffected by the demands of caring for the 2 children. The Wife’s primary responsibility was to care for the boys whilst the Husband’s was to bring in the income.
192 I do not say that the Husband did not contribute to the welfare of the family but this was the way the parties organised their roles.
193 It is entirely reasonable for the Wife to wish to continue in that role. She has not “sat on her hands” and done nothing. She does not claim to not have to work at all. She earns a reasonable income during the time the children are with the Husband. That income is more than many people in the community could earn from a full time
9 to 5 job.
194 I refer to the schedule of the Wife’s income (Exhibit H9) and find that it shows the Wife has been consistently in employment, albeit on a casual basis.
195 I specifically reject the suggestion by the Husband via Counsel that the Wife could have worked more instead of going on short holidays to Broome and other places. She is entitled to take brief holidays either with the children or her then boyfriend. The Husband is similarly entitled and has done so in the 2 years since separation.
196 I accept the evidence of Professor Mulvey about what the Wife could be earning, but in my view she is working to a reasonable capacity in the circumstances.
197 By contrast, little has changed in terms of hours of work for the Husband. His hours have been consistent for a number of years. He also has the personal circumstances and the financial means to ensure that the children are appropriately cared for before and after school; during school (for emergencies and unforeseen events) and during school holidays. This enables him to continue these hours.
198 The Wife has no such resources and no such access to family, friends or a partner. She must maintain work that will allow her the flexibility to be available for periods such as school holidays. I take judicial notice of the fact that most jobs have a standard amount of 4 weeks annual leave per year, whereas school holidays are anywhere from 12 to 14 weeks per year. Even taking into account the children would be with the Husband for half of school holidays, the Wife needs to be available for at least 6 to 7 weeks each year. There is likely to be a shortfall even if she were to take all her annual leave to care for the children during the holidays.
199 I find that the Wife has proven that she is not able to adequately support herself by reason of having the care and control of the children.
200 I reject the attempts by the Husband to infer that the Wife has no need for spousal maintenance as she is being supported by a de facto partner. The nature of that relationship is disputed. The Husband asks that I find that they are in a “close and supportive ongoing relationship”. It is not necessary for me to decide this issue. Even if it were a de facto relationship, it is in its infancy. It does not override the duty of a spouse to maintain their spouse under section 72.
201 The extent of the Wife’s need would normally need to be assessed to justify the amount requested.
202 The extra difficulty with this part of the Wife’s application is the capacity of the Husband to pay. At the end of these proceedings, he will be left with property with very little if any equity; substantial mortgages; a significant taxation liability and a further debt in order to pay a lump sum to the Wife.
203 He does have a very significant income, but there are limits to how much can continue to be loaded onto him.
204 I take into account that the Husband has had the capacity to do the following:
a) Provide $60,000 to his current de facto partner for her to buy an Audi motor vehicle. He says it was a loan but he gave the distinct impression he did not really discuss any precise terms with his de facto. He has said that he rarely talks about such issues with her as it “is boring”. He was also vague on the precise terms of when such a loan would be repaid, and when it was actually repaid. It has been repaid.
b) Enter into a lease of an Audi A5 motor vehicle which would cost in the region of $278,000 over the term of the lease. That vehicle was to replace an earlier Mercedes, which lease had expired. He simply upgraded. It seems an unreasonable expense in light of the many statements made by the Husband during the course of the trial about how little money he had, and what substantial debt he had. The Husband made numerous references to “joint debt” that he has had to service since separation. There was indeed some significant joint debt, but that did not stop him entering into his own personal debt when he considered the need arose. The Audi is an example.
205 I am not satisfied that he has the added capacity to pay any ongoing spousal maintenance on top of the other amounts mentioned. Even if he did, I am satisfied that in all the circumstances of this case, it would not be proper to make such an order.
206 Consequently it would not be proper to make a section 77A reference in the orders.
Other matters:
207 The distribution of some chattels has been agreed.
Orders:
208 I pronounce the following orders:
On the basis that these orders are intended to finally determine the financial relationship between the parties pursuant to section 81 of the Family Law Act 1975:
1.Within 42 days, the Wife transfer to the Husband all her right, title and interest in the property at the Beachside Property being more particularly described as Lot 242 on Plan 6841 being the whole of the land comprised in Certificate of Title Volume 1782 Folio 174 (“the [Seaside] block”).
2.The Husband indemnify the Wife in relation to the mortgage (including any arrears) secured against the Seaside block.
3. Within 42 days, the Husband pay to the Wife the amount of $102,034.99.
4.Within 42 days, the parties sign all documents and do all things necessary to transfer to the Husband all bank accounts associated with M (WA) Pty Ltd; WFT Investments; the [WFT] Trust and any current joint bank accounts.
5.Within 42 days, the Wife resign as director of M (WA) Pty Ltd in favour of the Husband or his nominee and transfer her shares in M (WA) Pty Ltd to the Husband or his nominee.
6.Thereafter, the Husband in his personal capacity and as an office holder in the above companies and trust and as Trustee and Appointer of the trust pay and indemnify the Wife as to:
a) Any liability whatsoever which the Wife may have in the future in respect of any offices held by her at any time in the companies or the trust.
b)Any liability arising in respect of any claim, debt or demand for which the Husband and the companies or trust become liable.
c) Any loan account, debt, demand, or other liability of the Wife to the companies or the trust.
d)Any action, claim, debt or demand made or to be made against the Wife in respect of her involvement in the companies or the trust.
e) Any other liability which may arise as a result of the Wife having been a shareholder and/or Director and/or beneficiary or in any capacity in the companies or the trust.
f) All income tax assessed or hereinafter assessed against the Wife in respect of income derived or deemed to have been derived by the Wife from the companies or the trust including any liability arising fro any dividends declared or deemed to be declared and any liability in respect of penalties assessed or hereinafter assessed against the Wife in respect of any income received in the name or names of the parties or held in the name of the companies or the trust.
7.In the event that a dividend is (or is required to be) allocated to the parties in respect of the Division 7A loan in M Pty Ltd, then the parties take all action necessary to declare a dividend to each of them from M Pty Ltd, but only in relation to the loan accounts up to the date she transfers her interest to the Husband, and that the parties do all things necessary to legitimately minimise any income tax, PAYG tax, Land Tax, Capital Gains Tax, and Stamp Duty payable in giving effect to these orders.
8.Pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the Husband’s superannuation in the iPac Superannuation Fund (“the Fund”) the Wife shall be
entitled to be paid an amount of $162,316.34, calculated in accordance with
Part 6 of the Family Law (Superannuation) Regulations 2001.
9. Having been accorded procedural fairness these orders bind the Trustee of the
Fund.
10.The operative time for the above order is four (4) business days after the date of service of these orders upon the Trustee of the Fund.
11.There be liberty to apply to each party and the Trustee of the Fund in relation to the implementation of the orders affecting the superannuation interest.
12.Any interest the Wife has in the property at the Countryside property, registered in the name of WFT Pty Ltd vests in the sole name of the Husband absolutely on the basis that the Husband pay and indemnify the Wife as to any liability arising including the mortgage secured against the title to that property.
13.Save and except in relation to the specific items referred to in these orders, each party is to otherwise retain their own assets and debts and superannuation.
14.Within 14 days of the date of these orders, the Husband at his expense, do all acts and things necessary to deliver possession of the following chattels to the Wife’s residence:
From the Countryside property:
a) 1 Queen Bed and mattress and set of linen. b) 1 Double Bed and mattress and set of linen. c) 2 orange coloured two seater sofas.
d) 1 pine coffee table. e) 1 fridge freezer.
f) 1 small fridge.
g) 1 gas Weber BBQ and gas bottle. h) 1 wooden rocking chair.
i) 1 electrical coffee machine.
j) 1 electrical toasted sandwich/pannie maker. k) 1 wardrobe.
l) 1 TV.
m) 1 wooden blanket box. n) 1 hammock.
From Rental property:
a) 1 wooden side table.
b) Le Cruset casserole dishes – 1 oval shaped and 1 round shaped. c) Kitchen equipment to be agreed.
d) 1 stainless steel water jug.
e) 1 coloured sketch of the children picking apples by [K].
f) 1 coloured sketch of [Simon] laying on a bed as a baby by [K]. g) 1 wine fridge.
h) Collection of Dr Who DVD’s.
15. The financial aspects of the proceedings are otherwise dismissed.
I certify that the preceding [208] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
Secretary
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