Xuan and Lang
[2009] FMCAfam 729
•7 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XUAN & LANG | [2009] FMCAfam 729 |
| FAMILY LAW – Property dispute – significant art collection of husband not able to be valued – inadequacy of evidence by both parties. |
| Superannuation Guarantee (Administration) Act 1992 Superannuation Guarantee Charge Act 1992 Family Law Act 1975, s.75(2) |
| Chang v Su (2002) FLC 93-117 Weir, In the Marriage of (1993) FLC 92-338 |
| Applicant: | MR XUAN |
| Respondent: | MS LANG |
| File Number: | MLC 1501 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 7, 8, 11 & 12 May 2009 |
| Date of Last Submission: | 12 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 7 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr T.J. Puckey |
| Solicitors for the Applicant: | Robinson Gill |
| Counsel for the Respondent: | Mr P. Indovino |
| Solicitors for the Respondent: | Tartaglia & Associates |
IT IS NOTED that publication of this judgment under the pseudonym Xuan & Lang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1501 of 2008
| MR XUAN |
Applicant
And
| MS LANG |
Respondent
REASONS FOR JUDGMENT
This is a property dispute in which both the primary parties were very inadequate witnesses. The forensic difficulties of working out what happened are significant. In relation to some of the matters in issue between the parties, it is impossible.
Introductory Facts
The applicant husband was born in China in 1969 and is 40 years old. The respondent wife was born in China in 1960 and is 48 years old.
The date of the commencement of the relationship between the parties is a matter of some significance and was not agreed.
The husband says the parties met in 1993 and commenced cohabitation in 1994 and married on a date agreed as having been [in] 1996.
The wife says the cohabitation commenced in 1996, although she admits that they met earlier. She says that the parties commenced what she described as a process of flirting shortly before the husband went to China in about August 1994.
The wife says that the husband returned to Australia in July 1995 and left thereafter to return to China where he stayed until April 1996.
She puts the date of the commencement of cohabitation then.
Neither side's version is inherently more probable than the other’s but it is common cause that the husband spent most of the period from 1994 until 1996 working in China.
The wife's evidence, which in this regard was given with conviction, accords with what can be said objectively to be the case.
The wife bought in her own name a property at Property G in April 1994. The purchase price of the property is unclear but is said to have been about $130,000 with a loan of approximately $75,000 (see wife’s affidavit filed 5 May 2009, paragraph 16).
The wife, who has been in employment for over 20 years for a local council, says that she put up the entirety of the deposit from her own funds, possibly assisted by her mother.
The husband says that he had about $15,000 in funds and put this sum into the property.
The husband was unable to provide any documentation of any sort to corroborate his contribution. Given the fact that this all took place
15 or more years ago, that is perhaps not surprising. Nor is it surprising that the property was put wholly in the name of the wife because that is how the parties conducted all their affairs.
Nonetheless, the relationship at its earliest commenced in 1993 and a common purchase of property in 1994 is not inherently probable in the circumstances. It seems to me probable that a relationship sufficiently significant to involve the common purchase of property would have impelled the husband to stay in Australia and not spend most of the next 18 months overseas.
Plainly there was some sort of interrelationship before the husband left for China, and the wife became pregnant very shortly after the date she asserts as the commencement of the relationship in April 1996.
Taking into consideration the inherent improbability of a man sufficiently in love to put up most, if not all, of his savings in a common financial venture immediately departing from the beloved for a very extended period of time and the fact that the wife's evidence was given with conviction, together with the fact that the husband was on social security when the parties met, I am satisfied that the wife contributed the whole of the deposit on the Property G property.
As I have indicated, the parties married in 1996 and their child, [X], was born in 1996.
Thereafter the parties cohabited until the wife took out an intervention order in March 2007, pursuant to which the husband was removed from the former matrimonial home by police, being able to take little more than the clothes on his back.
The husband is and has been for many years, including well prior to the relationship, a person both interested in and active in the world of Chinese art. His materials show that he has been an acquaintance of a number of well‑known Chinese artists and that he has developed significant skills as an artist, it appears particularly in wood blocks, calligraphy and the copying of other works, together painting with his own original works.
He has continued this interest throughout the relationship and asserts that he has made a certain amount of money teaching as an artist in Melbourne throughout the entirety of the relationship. I accept that this has been the case, although his earnings do not seem to have been substantial.
One result of the husband's interest in Chinese art has been the amassing by him of a very substantial collection of Chinese works of art which include pieces of calligraphy, paintings and the like. A very substantial number of these paintings have been valued by Ms H.
There are said to be other paintings extant which have been the subject of considerable dispute before the Court.
The parties have been able to produce final orders as to parenting issues, pursuant to which [X], who is now about 12½ years old, lives with his mother but spends time each Saturday from 10.00 am until 5.00 pm with his father and on other special days.
The wife has remained in possession of the matrimonial home and as I understand it, it is common cause that she should retain it. The husband lives with his parents, who migrated to Australia from China in 2006. They live at a unit at Property M, which has an agreed value of $280,000, encumbered by a mortgage of $176,000 (net value $104,000).
The circumstances surrounding the ownership of the Property M property are the subject of dispute.
The property at Property G, was sold in 1998 for about $130,000 with net proceeds of sale of between $70,000 and $80,000 after the mortgage was repaid.
That sum was committed to buy the matrimonial home at Property B, in 1998 for $178,000, of which $100,000 was borrowed.
By a time in February 2007, shortly before separation, that mortgage had reduced to about $50,000.
The Pool
The Property B property has an agreed value of $520,000.
It is common cause that at separation, the mortgage was about $77,000.
It had, however, increased by about $22,000 in the immediate preceding weeks and as I find, those sums were drawn by the wife in contemplation of the separation that occurred. No other sensible or credible explanation has been advanced.
Insofar as the wife has drawn down on the mortgage and expanded it enormously since separation, and indeed to the extent of over $20,000 immediately beforehand, this is by and large taken care of by the methodology the parties themselves have adopted.
Both parties have approached the case on the footing that I should approach the scope and size of the mortgage basically as at the time of separation. The increases that have been occasioned by the wife's profligacy will be borne by her.
In my view, when approaching the question of contribution, the mortgage should be assessed as at the time, in February 2007,
when it was of the order of $55,000. This is before separation but as I have said the $22,000 withdrawn by the wife should be taken into account.
It should be noted that the mortgage in respect of the former matrimonial home increased dramatically in 2007 after separation but because the parties have both approached the case on the footing that I should simply accept the liability as it stood at separation, it is not necessary for me to go in detail through the extraordinary expenditures that the wife engendered thereafter.
The Property M property has an agreed value of $280,000 and
is encumbered by a mortgage in the sum of $176,000.
A vivid issue still remains, however, to be determined in respect of
the Property M property.
The husband contends that he is only the owner of that property as to 27 per cent because he says that that is the percentage that he contributed. He says that the rest was contributed by his parents in anticipation of their move to Australia. The wife's case is that only the husband is on title in respect of the Property M property, that there is no satisfactory evidence to support the proposition that the husband's parents contributed any moneys to the property and that in any event, they merely advanced these sums to assist their son and that he is in truth, at law and in equity, the sole beneficial owner of the property.
The husband's father was called to give evidence. He is a retired [omitted] who said, and I accept his evidence, that in addition to his professorial salary, he was able to work as a consultant in China.
His wife is an [omitted] who likewise was able to perform other work.
I do not find it in any way surprising that the parents were able to contribute as they say they did to the purchase of the Property M property.
There are credible bank records showing the depositing into the husband's account in June 2007 of amounts entirely consistent with the evidence given by the husband's father (see Exhibit SX1 to the
father’s affidavit filed 21 April 2009 and Exhibit A1”).
The husband's father was an impressive witness whose evidence
I accept in its entirety.
I am comfortably satisfied, notwithstanding the possibility of informal arrangements between the parents and the husband and the fact that they would doubtless have a desire to assist him in a general way, that the parents contributed in the proportion of 73 per cent to the purchase price of the property and that in truth, all parties regard the property as being owned by them in those proportions and will deal with them in those proportions for all future purposes.
This is so despite the fact that the husband has purported to lease the property himself alone on occasion. The husband's evidence about the nature of this lease (see Exhibit R1) was extremely unconvincing and part of the generally unsatisfactory nature of his evidence. Nonetheless, it does not surprise me that the husband has purported to deal with the property from time to time as it is plain that he as the long-running Australian resident would be likely to do so.
The pattern of one party only being registered as a proprietor and dealing with a property ostensibly as the sole proprietor is after all no more than a mirror image of what took place with the matrimonial home in which the wife was the sole person put on title and made all the mortgage payments. It appears that arrangements of this sort are not uncommon in at least so much of the Chinese community as we are concerned with.
Accordingly, the husband's interests in the property should be assessed as 27 per cent of the net worth of the Property M property which as far as I can see is about $28,000.
Another issue to be addressed is that of the shares dissipated by the wife following separation.
It is clear that quite a substantial proportion of these shares, probably in excess of $43,000, were Commonwealth Bank of Australia (“CBA”) shares which were owned by the wife prior to cohabitation.
An additional sum in respect of shares was also dissipated.
The evidence is not by any means clear. Copious bank records were put in evidence, much of which I confess I found hard to follow, but doing the best I can it seems that approximately $65,000 of shares in addition to the Commonwealth Bank of Australia shares was dissipated by the wife. From her evidence it seems clear that much of it was dissipated in gambling or otherwise frittered away.
Both sides agree this dissipation should be taken into consideration in the pool and I will do so, save to the extent that the total dissipated was constituted by the CBA shares already referred to.
Those shares were bought by the wife prior to the relationship and
it is not in my view proper to include them in the pool.
Additionally I note that the wife has paid something of the order of $60,000 in payment of school fees for the child. About $4,500 was said to be payment of outstanding school fees and about $55,000 pre-payment of fees.
The husband expressly agreed that the school in respect of which the fees had been paid was one he wished his son to go to and accordingly this seems to me to be a positive contribution that should be fully credited back to the wife.
The resulting total of some $60,000 is remarkably close to the amount of shares dissipated by the wife. Both of these should be included in the pool, however, just as the $60,000 paid in respect of school fees should stand wholly to the credit of the wife, so to this $65,000 dissipated in terms of shares should stand wholly to her liability.
This brings us next to the vexed issue of the husband's artwork.
Some 200 or so pieces of artwork of various sorts have been valued by an independent expert, Ms H. Those in toto are said to be worth $81,930 (husband's figure) and $83,700 (wife's figure). I will adopt a value of $82,800, being approximately the mid-point. I do not propose to add up the totals myself.
It should also be noted that some of those artworks are hundreds of years old and that virtually none of them have any particularly substantial value. I do not think that there is any piece of artwork worth over about $12,000 referred to in the evidence in his case.
That is important because the real area of controversy was not the artworks that have been valued but those which are said to exist and have not.
It is the husband's case that the wife, who after all remained in possession of the matrimonial home where it seems almost all these artworks were, has abstracted about ten of the most valuable and antique paintings. Photographs said to be of these have been provided. The husband says they are worth many hundreds of thousands of dollars, although counsel made it clear that it was not put that the Court was in a position to value them.
Rather, the husband sought a declaration that these missing paintings are in the possession of the wife and an order that they be delivered up.
The wife said, conversely, that the husband had retained a number of pieces of artwork and that he should be compelled to give them up. Likewise, she provided no valuation.
Each of the parties roundly denied having any additional artwork in their possession.
Before expressing any conclusions on this rather vexed area of controversy, it is appropriate to examine the credit of the parties in more detail.
Credit of the Husband
On any view, the husband was a very unconvincing witness.
Matters of demeanour should be approached with caution, particularly where evidence is being given through an interpreter, but the husband's evidence on a number of occasions showed to me every sign of a witness changing his evidence on the run and propounding whatever answer seemed most in his immediate interests.
That impression is only fortified by the following illustrative deficiencies in his evidence:
·He has forged over the years a number of purported academic qualifications. His explanations to the contrary were completely unconvincing. The documents (part of Exhibit R2) showing the way in which he took the qualifications of another and gradually superimposed his own name are compelling, and I found his explanation of why he dressed up in the graduation robes of another completely unconvincing.
·The husband forged the wife’s signature as a witness on a document related to his parents' visa application to come to Australia. Although he said in effect that it was commonplace for spouses to sign in this way, and although it is not clear why he simply did not get someone else to sign because all that was required was a witness, once again his explanations were completely unconvincing. I accept the wife's evidence that her signature was forged without her consent, not the least because she reported the husband to the police for so doing.
·The husband stoutly maintained that he had been in employment by a firm called [A] Pty Ltd (“[A]”) until very recently. He also said that payments had been made by that company in the sum of $14,000 over a period of years to an individual in China. He said that the payments were made via the medium of his father's own bank account but that this was the way the arrangement worked.
He also said that he had worked as a consultant to that firm.
A Ms N of [A] was called. Her evidence showed that the primary work done by the husband was that of a [omitted] (a picture rather different than the husband himself had sought to paint). She also said that she and her partner, who are the directors of the company, had been under the impression that the moneys were paid directly to the applicant and not to some third party. More importantly, she showed that the work history of the husband was full‑time from 27 July 2004 until 10 June 2008 and casual from 11 September 2008 to 23 February 2009. This was a radically different picture to that sought to be presented by the husband.
Putting the matter shortly, the husband was in a general way an unsatisfactory self-serving witness with a proven tendency to dishonest conduct.
I am fortified in that conclusion by exhibits showing payments to Mr S in the sum of $5,000 (Exhibit W2 and W3 to wife’s affidavit filed 5 May 2009). While the husband's evidence that two cheques were drawn but only one was paid is entirely believable because the first cheque had an incomplete version of the gentleman's name, what emerges from the documents surrounding the payment is very off-putting. Exhibit W3 is annotated, in Mr S’s hand “Received from Mr Xuan the sum of five thousand dollars for the provision of an Assurance of support for Mr X, and Mr Z”. Exhibit W2 purports to be a civil contract in the same terms.
The only conclusion that one can give to these exhibits is that Mr S was advanced $5,000 pursuant to a contract between him and the husband whereby this individual would dishonestly represent himself as the financial sponsor of the husband's parents upon their arrival in Australia.
Why the parties would wish to record a dishonest contract of this sort in this way is beyond me (and who created it remains a mystery as its terms are far beyond the husband’s English), but on the face of the documents it seems clear that that is what it was. The husband was engaged in a fraudulent endeavour to suggest to the migration authorities in Australia that his parents had independent financial support when in truth that financial support was being provided by him.
I repeat the husband's evidence was unsatisfactory and must
be approached with considerable caution.
The Wife's Credit
Here, the picture is different but the result is the same.
Once again, having heard and seen the wife give her evidence,
it is impossible to avoid saying that she was very unsatisfactory.
Her evidence was given in English. While she is clearly not wholly fluent and proficient, she was well able to give her evidence in English and some of the difficulties arising out of the process of translation did not obtain. Nonetheless, I bear in mind that with a person giving evidence in a second language, one should approach issues of demeanour with appropriate caution.
Nonetheless, again there were very telling credit points against
the wife.
Counsel for the husband made much of the wife's failure to comply with Court orders as to disclosure.
Some of those criticisms were in my view slightly overstated.
The wife's reluctance, for example, to permit Mr J to be the valuer of the artworks was on its face, albeit expressed somewhat querulously, not unreasonable.
Nevertheless, taken overall, I accept counsel for the husband's criticisms of the wife's very inadequate disclosure of documentation in the course of the proceeding. Relevant issues here include:
·The continual and ongoing frustration until a very late stage by the wife of any valuation of the artwork that she alone controlled.
·The provision by the wife of financial records of the mortgage, deliberately excluding the $22,000 she expended between February and March 2007.
·The inadequate disclosure of share transactions.
·The fact that the wife disclosed initially that she had sold shares of about $11,000 when in fact she had disposed of well over $100,000.
·The wife's endeavour to transfer half of the ownership of the former matrimonial home to her sister (albeit that in the ultimate that self-evidently sham transaction has been conceded).
·The late provision of financial documents clearly relevant and within her power to produce.
In saying this, I bear in mind that the respondent wife was self‑represented for substantial periods of the proceeding, but even making every allowance in her favour, the overall picture that emerges is one in which one can confidently say that she has done her best to conceal any assets she thinks she has been able to conceal and to present an incomplete and misleading picture of the financial records to the Court.
It should be noted and repeated that as with the husband, the wife gave every impression to me of modifying her answers and making them up on the run in whatever way seemed most appropriate to suit her immediate interests.
Conclusions as to the Artwork
I have dealt in some detail with the credit, or regrettably perhaps more accurately lack of it, of the two primary witnesses. These are not people I would readily believe unless there was objective evidence to support their assertions or unless they were making concessions against interest.
Neither made any concessions against interest in relation to the artwork that is said to be missing.
While there is photographic evidence that some paintings existed which have not been found, there is no entirely credible evidence about this issue.
It is clear that the artworks that have been valued, which I say again include some antique items, do not have values such as to suggest that an additional ten would be worth up to $400,000 or anything near it.
Neither side has convinced me that it is more probable than otherwise that the other retains any artwork. Each party presents an internally consistent thesis and has stuck to it on that oath. Neither side’s version of the events is more inherently reliable than the other.
I therefore cannot make orders requiring either party to produce artwork that I am not satisfied they possess.
What is clear, however, is that if there are any other paintings,
they belong to the husband.
In respect of this issue, I can and should say that the matter has been made more difficult again by the fact that the husband initially produced a list of paintings said to be missing but subsequently had to concede, following input from the wife, that a number of the paintings he had marked as missing had in fact been valued by Ms H.
This not only confuses the issue as to exactly which paintings might or might not be lost, but to my way of thinking it shows that the wife knows rather more about art than she was prepared to concede.
The general thrust of her evidence was that she paid no attention to her husband's artistic activities of all sorts. This seems to me to be markedly inconsistent with the fact that she is able to say that there is a number of paintings (bearing in mind the overall total in excess of 200) still in his possession and is also able quite readily to point to the inconsistencies between the list the husband produced and the list of those valued by Ms H.
In the ultimate, the credit of these two witnesses is so low and the evidence about the artwork is so confused and confusing that
I am simply not able to reach any conclusions about it at all.
On one view, it is clear that if the missing paintings were indeed in the possession of the parties, then they must necessarily belong to the husband. The difficulty is that I cannot even be satisfied that that is the case. Further, I cannot be satisfied that in one way or another he has not been able to extract them himself. The wife's evidence after all was that she had never seen the paintings now said to be missing.
The fact that there are photographs does not conclusively prove that they were in the parties' possession.
The husband remains at liberty of course to report the paintings that are stolen to the police. He has photographs to assist in their recovery.
In the face of his assertions as to their value, he will doubtless receive advice as to the best way to proceed.
Nonetheless for the reasons I have given, the additional artwork cannot be included in the pool.
Other Matters in the Pool
The superannuation of the parties is agreed as having been approximately $23,300 and approximately $139,000 respectively.
It was put that the wife had seven years of pre-relationship contribution and two years of post-relationship contribution to superannuation. That may be so, given that she has been in the same employment for
20 years, but I note that the scheme of universal superannuation presently in place in Australia only commenced with the introduction of the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992. In any event, there is no evidence as to the quantum of the wife's superannuation at the commencement of the relationship, nor indeed of its quantum at the termination thereof.
The wife has a motor car which the parties agree is worth $8,000 and I accept the submissions from counsel for the wife that the husband's motor car should be assessed at $4,000, this being the figure in his financial statement.
The chattels of the parties are not the subject of evidence, let alone expert evidence. I am not able to allot them any value. I note that it is agreed some chattels be returned to the husband. Insofar as there was dispute about chattels, being limited to a small number of items,
I accept the evidence of the wife and they will remain with her.
Accordingly, in my view, the pool consists of the following assets
and liabilities.
Assets
·Property B $520,000
·Husband’s interest in Property M $75,600
·Chinese Artwork $82,800
·Wife’s motor car $8,000;
·Husband’s motor car $4,000;
Liabilities
·Mortgage of Property B in February 2007 $55,000;
·Husband’s share of mortgage on Property M $47,520;
Superannuation
·Husband’s superannuation $23,313;
·Wife’s superannuation $139,161
I have not while not technically described as assets or liabilities, I take into account the $60,000 school fees paid by the wife and the $65,000 of shares dissipated by her.
Issues arising From the Case of Chang v Su (2002) FLC 93-117
I should deal with a discrete issue relating to the credit of the parties.
Counsel for the husband submitted strongly that the failure of the wife to provide full and frank disclosure, which as I say I have generally accepted to be the case, should lead the Court "not to err on the side of caution in making findings about the asset pool".
Counsel referred to a number of cases in this regard, including
Chang v Su(2002) FLC 93-117 (“Chang v Su”).
There, the Court referred to a number of authorities including
Weir, In the Marriage of(1993) FLC 92-338 where the Full Court said at 79-593:
“It seems to us that once it has been established that there has been deliberate non disclosure ... then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”
Counsel submitted that his own client's lack of truthfulness, while conceded at least in part, was of a different character and should give rise to different consequences because of the authorities encapsulated in Chang v Su.
I am not able to accept this assertion. It is one thing to say, as the
Full Courtclearly did say, that a Court should be more robust in circumstances where it had a positive state of satisfaction that a party has failed to make full and frank disclosure.
It is another matter altogether to raise such a failure to a special position giving rise to unique consequences, as counsel for the husband contended.
In the context of this case, while I am satisfied that the wife's approach to disclosure has been manifestly inadequate, it does not in my view produce some sort of irreversible triumph on the part of the husband.
Both parties were thoroughly unsatisfactory witnesses. While it is certainly the case that the wife has failed to account for substantial amounts of money drawn down by her, this is a case in which most of the parties' assets are in the ultimate not the subject of a great degree of doubt. What is in doubt is the extent of dissipation on the part of the wife. As I have said already, however, that difficulty is largely resolved by the parties’ agreement that the wife be solely responsible for the mortgage on the former matrimonial home.
Contribution
I have already dealt with the contribution made to the initial purchase of the Property G property. That was a matter wholly contributed by the wife.
The wife's evidence was that her mother had provided assistance to her around about 1994 to 1998 in the order of about $30,000 in total.
The wife's mother was not called to give evidence, although it was not suggested she was unavailable and no documents of any sort were provided to support this assertion.
In the circumstances, I am not satisfied that the wife's mother provided any particular amount of assistance to the wife and/or the parties during the currency of the relationship.
The wife has worked throughout the entirety of the relationship and remains in her employment. The husband works most of the time but not all of it, as is disclosed by the evidence from [A].
It is clear that the wife's income has always been substantially greater than that of the husband. Her tax records show her income in excess of $55,000 and despite counsel for the wife's valiant attempts to muddy the waters, it is clear that the husband's income has been and will be much less.
The husband brought his artworks into the relationship and will take them out again at the end.
So far as other matters are concerned, I accept that the wife has been the primary carer for [X] during the relationship, a matter exemplified by the consent orders about [X]’s living arrangements.
The picture that emerges from the contribution of the parties overall is that the wife steadfastly looked after the child, worked and generally contributed on an ongoing basis.
The husband contributed far less to the upbringing of [X], and
his employment efforts seem to me to have had much of the dilettante about them.
Furthermore, and this was the subject of vivid complaint from the wife, the husband was in the habit of saving up his own funds, so to speak, on the side. He had amassed some $25,000 by the time of separation, about which it is clear the wife knew nothing until these proceedings. The bitterness she expressed about this was palpable.
I have already mentioned the wife’s dissipation of shares, but that is all but cancelled out by her payment of school fees.
In all the circumstances, in my view, there should be a 10 per cent adjustment in the wife's favour on the issue of contribution.
The Section 75(2) Factors – Future Needs
Here, the wife will be looking after [X] until he is 18 at least. The father contributes no more than child support as assessed in what is a very small sum, given his low income.
The husband is some nine years younger than the wife and will have a longer earning span, albeit that his superannuation is substantially less at least at present than that of the wife.
Neither party's health is such as to be a relevant consideration.
The wife is in secure long‑term employment and will doubtless continue to earn much the same level as she has done thus far,
but the husband's income is less certain and less secure.
In all the circumstances there should be a 5 per cent weighting
in favour of the wife in respect of future needs.
Just and Equitable
In my opinion a 65 per cent split in favour of the wife is just and equitable in the circumstances of this case as I have described them.
It has been implicit, if not explicit, in the parties' positions that the wife should retain the former matrimonial home and the husband should retain whatever the Court finds is his true share of the Property M property. It is also agreed between the parties that the husband should retain the artwork that has been valued.
Although the wife's formal proposal included the payment of $80,000 to the husband, it is not clear to me whether or not she will be able to do that, given the fact that as I find, she should be responsible for the entirety of the mortgage on the former matrimonial home.
In the circumstances, I will give the parties an opportunity to consider these reasons for judgment and direct them to bring in minutes of orders consistent with my conclusions.
If the parties are unable to agree as to the orders, I will hear the matter further.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 7 August 2009
0
0
3