Yavuz and Yavuz & Anor (No 2)

FAMILY COURT OF AUSTRALIA

YAVUZ & YAVUZ AND ANOR (NO. 2)

[2013] FamCA 1038

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Application by the wife for property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) – Whether just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Where the husband’s brother seeks pursuant to s 78 and 90AD(1) of the Family Law Act 1975 (Cth) payment for an alleged debt in the amount of $2 000 000 – Where the husband’s brother seeks pursuant to s 90AE(1) of the Family Law Act 1975 (Cth) that the husband and wife be held liable for a debt in the amount of $2 000 000 – Where the wife made allegations of domestic violence against the husband during the relationship – Where it is just and equitable under s 79(2) that the parties interests in property be altered by appropriate order – Where order made for the husband and wife to share the property and superannuation equally.

FAMILY LAW – PROPERTY – Disclosure – Where husband failed to make a full and frank disclosure of his financial affairs.

FAMILY LAW – CHILDREN – Parental responsibility – Where the three children of the relationship are estranged from wife and husband has sole parental responsibility of the children.

Family Law Act 1975 (Cth) – s 75(2), s 78, s 79, s 79(1), s 79(2), s 79(4), s 90AD, s 90AE(1)

Bevan & Bevan (2013) FLC 93-545
Kennon v Kennon (1997) FLC 92-757
Rolfe & Rolfe (1978) FLC 90-629; 5 Fam LR 146
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Ms Yavuz

1st RESPONDENT:

Mr Yavuz

2nd RESPONDENT:

Dr Yavuz

INDEPENDENT CHILDREN’S LAWYER:

Ms O'Donnell

FILE NUMBER:

SYC

1202

2009

DATE DELIVERED:

23 December 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

8, 9, 10, 11 & 12 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Puckey

SOLICITOR FOR THE APPLICANT:

Pearsons Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Maghami

SOLICITOR FOR THE 1^ST RESPONDENT:

Farid Fanaian Solicitor

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Jackson

SOLICITOR FOR THE 2^ND RESPONDENT:

Johnston Tobin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Donnell of Legal Aid NSW

Orders

That the application by the husband’s brother, Dr Yavuz, be dismissed.
That within 60 days the husband pay, or cause to be paid, to the wife the sum of $1 506 723 (“the payment”).
That pending receipt by the wife of the payment together with any interest and/or costs due to her pursuant to these orders:-
(a)The husband and Dr Yavuz, in their personal capacities and as directors of TT Pty Limited ACN … and HH Pty Limited ACN … (“the companies”):
(i)be and are hereby restrained from dealing with, encumbering, disposing of, gifting and/or alienating any of the real properties detailed in the Schedule attached hereto (“the properties”), save and except to comply with the terms of these orders or in the ordinary course of business; and
(ii)continue to pay, as and when they fall due, all loan instalment repayments of principal and/or interest to the ANZ Bank and all other outgoings of the properties of whatsoever nature and kind.
That if the husband fails to comply with order 2 above he and Dr Yavuz personally, and in their capacities as directors of the said companies, forthwith do all things and sign all documents necessary to sell such of the properties as are required to raise sufficient funds to make the payment to the wife together with any interest accrued thereon.
That in the event that the payment together with accrued interest is not made to the wife in full by 30 June 2014, then the husband and/or Dr Yavuz personally and as directors of the said companies forthwith do all things and sign all documents necessary to transfer the properties to the wife to be held by her on trust for sale.
That in the event that the properties are sold, including pursuant to the default provisions of these orders, the proceeds of sale shall be applied in the following order and priority:-
(a)Firstly to pay costs of sale which shall include real estate agent’s fees and commissions, and conveyancing costs and disbursements;
(b)Secondly to discharge registered mortgages and securities but excluding any caveats lodged over the properties;
(c)Thirdly to pay to the wife so much of the payment as is outstanding together with interest at the rate prescribed by the Family Law Rules;
(d)Finally, the balance remaining to be paid to the husband and/or Dr Yavuz or as directed by them less any costs ordered to be paid in favour of the wife.
That in the event that the husband and/or Dr Yavuz refuse and/or neglect to execute any deed or instrument necessary to give effect to all or any of the orders made herein the registrars of this Court be appointed, pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the said party and to do all things necessary to give validity and operation to the said deed or instrument.
That save and except for the purposes of enforcing any money due under these or any subsequent orders each party shall retain all other items of property (both real and personal and including choses-in-action financial resources and superannuation entitlements) in their respective names, possession and/or control and each party shall be liable for any debt or liability in their name or attaching to any item of property that they are retaining pursuant to these orders.
That all exhibits be released.
That all parties have leave to re-list these proceedings on 14 days notice in relation to the implementation of these orders.
That the above orders shall not commence operation until 30 January 2014.
That both parties have leave to re-list these proceedings by arrangement with Johnston J’s Associate, for further submissions in relation to the form of the orders only at any time not later than 29 January 2014.
That the husband pay to the wife’s solicitors within 30 days the sum of $3380 being the Court’s assessment of her costs thrown away on 8 April 2013 due to the husband’s counsel not being available to appear at court that day.
That by consent Dr Yavuz pay to the wife’s solicitors within 30 days the sum of $970 by way of the wife’s costs.

SCHEDULE

WN property
T property
First P Property
First Sydney Property
First N Property
Second Sydney Property
Second N Property
Third N Property
Fourth N Property
Second P Property
Fifth N Property
MT Property
Third P Property
Sixth N Property
Unit 6, MW Property

IT IS NOTED that publication of this judgment by this Court under the pseudonym YAVUZ & YAVUZ has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1202 of 2009

Ms Yavuz

Applicant

And

Mr Yavuz

1^st Respondent

And

Dr Yavuz

2^nd Respondent

REASONS FOR JUDGMENT

Mr and Ms Yavuz were married in Turkey in 1995. Although they were divorced on 17 December 2011, for convenience I shall refer to them as “the wife” and “the husband” respectively.
They have been unable to resolve issues about property settlement and have asked this Court to determine these matters for them.
There is another party in the proceedings, namely Dr Yavuz. Dr Yavuz is the husband’s brother. For convenience I shall refer to him as “Dr Yavuz”.

Applications

The wife seeks orders to the following effect:
·That within 60 days the husband pay to her the sum of $2 000 000;
·That pending receipt of the payment the husband and Dr Yavuz in their personal capacities and as directors of the corporations TT Pty Limited and HH Pty Limited be restrained from dealing with, encumbering, disposing of, gifting and/or alienating specified properties other than in the ordinary course of business and that they continue to pay loan instalments and other outgoings in respect of the properties;
·That each party be declared the sole owner of other property and superannuation in their possession and control respectively and
·That certain enforcement orders be made to provide for the possibility that payment is not made in accordance with the order.
On the other hand the husband seeks orders to the following effect:
·That within 60 days he pay to the wife the amount of $663 853 and
·A similar order to that sought by the wife in respect of the remaining property and a similar order in respect of enforcement in the event that the first order is not complied with.
Dr Yavuz seeks orders to the following effect:
·That pursuant to s 78 and s 90AD(1) of the Family Law Act 1975 (Cth) (“the Act”) the Court declare that the husband and wife owe Dr Yavuz by way of a debt the amount of approximately $2 000 000 or such amount as is found by the Court or otherwise agreed upon;
·That pursuant to s 90AE(1) of the Act the husband and the wife be held equally liable for a debt owed to Dr Yavuz in the amount of approximately $2 000 000 or such amount as is found by the Court or otherwise agreed;
·That the parties do all things necessary to ensure that Dr Yavuz is provided with, from the net matrimonial pool of assets, the amount of $2 000 000 or such amount as is found by the Court or otherwise agreed; and
·That as an alternative the Court invoke its accrued jurisdiction and make similar orders pursuant to such jurisdiction.

Background

The husband, 44 years of age, was born in Turkey and migrated to Australia in 1974. The wife, 37 years of age, was also born in Turkey. They married in Turkey in 1995 and the wife came to Australia in December that year. They separated in February 2009, cohabiting therefore for more than 13 years.
In 1995 Dr Yavuz commenced practising as a medical professional.
At the time of marriage the husband was driving a taxi full time. The taxi had been purchased by Dr Yavuz in approximately 1987 for approximately $95 000. The husband owned a property at WN subject to a mortgage. The husband was living in his parents’ home at B, where he continues to reside. When the wife arrived in Australia she joined the husband in living in this residence and it became the former matrimonial home.
In May 1995 Dr Yavuz purchased two investment properties at 21 and 23 X Street, WG for $162 000 and $170 000 respectively.
In mid-1996 Dr Yavuz purchased a business at T. The husband was tired of driving the taxi and he commenced operating this business full time.
In February 1997 Dr Yagvuz purchased the property at BW for approximately $304 000.
In September 1997 Dr Yavuz sold his taxi for $180 000.
In 1996 the eldest child of the husband and the wife, A, was born, she is currently 17 years of age.
In 1998, D was born, he is almost 15 years of age.
In mid January 1999 the husband’s father died. Shortly thereafter renovations and improvements were made to the property at B, where the husband and wife continued to reside.
Later in 1999 Dr Yavuz married his wife Ms Y in Turkey and brought her to live with him, his mother, the husband and wife and their family at the B residence early in 2000.
In 2001 the T business was sold and the N business was purchased using the net proceeds of sale.
In 2001 the youngest child of the husband and the wife, Z, was born. She is 12 years of age.
In 2002, Dr Yavuz sold his investment properties at 21 and 23 X Street, WG for $420 000 each. The proceeds of sale were applied to reducing debt and to the purchase of a commercial property in the names of Dr Yavuz and the husband. At approximately this time, a second business was established within the premises of the N business which the husband and Dr Yavuz called ‘…’.
In 2004 the N Business was sold and the proceeds were applied to the purchase of a property industry business which the husband and Dr Yavuz re-styled as “F Business”. On 1 December 2004 the husband commenced operating this property industry business. Approximately six months later the second N business was sold.
In 2004 the wife had a holiday in Turkey with the children.
In February 2005 Dr Yavuz and his family moved out of the B home permanently.
In 2007 the wife obtained work as a casual cleaner at the local Police Station and Court House, working five days per week, three and a half hours per day for approximately five to six months.
In 2007 the BW property was sold for $689 000. The net proceeds paid off debts and contributed to the purchase of another commercial property owned by Dr Yavuz and the husband.
On 21 February 2009 the husband and the wife separated. The wife left the former matrimonial home at B and travelled to Melbourne to live with her uncle and his family.
An apprehended violence order issued for the wife’s protection. After a short time living with her relatives in Melbourne the wife went to Turkey to visit her critically ill father there. She remained overseas for approximately two and a half months during which period she also visited her sister in Europe.
In late February 2009 the wife withdrew $40 350 from the ANZ Online Saver account, $3750 from a joint savings account and borrowed $5000 from her cousin and her uncle. I shall refer to this again below.
On 3 March 2009 the husband filed an Initiating Application in the Federal Magistrates Court (as it then was) seeking parenting orders. On 11 May 2009 orders were made pending further order restraining the parents from removing the children from Australia and requiring details of the children to be placed on the Airport Watch List.
In 2009 the husband and Dr Yavuz purchased a property at MW through their company HH Pty Limited for just over $3 000 000. They borrowed $2 530 000 to assist in funding this purchase.
On 23 October 2009 the wife filed an Initiating Application in the Federal Magistrates Court seeking parenting and property orders and on 12 February 2010 she filed an Amended Application.
On 19 March 2010 the husband filed a Response to Initiating Application. On 6 April 2010 orders were made adjourning the proceedings for a three day hearing commencing on 1 December 2010.
On 6 April 2010 the Federal Magistrates Court made orders for appointment of a single expert to value the “properties/assets” the subject of dispute – the husband to provide three names and the wife to choose one with the husband to pay the costs of the expert in the first instance.
In June 2010 Dr Yavuz drew down $341 701 from his personal home loans and paid the partnership interest bills that were due to the ANZ Bank.
On 2 July 2010 orders were made by the Federal Magistrates Court including an order that the husband pay to the wife $300 per week by way of interim spousal maintenance, an order that the husband pay to the wife $70 000 preliminary costs, an order that the parties attend a financial conciliation conference and serve relevant financial documents on one another and the cost of valuations be paid by the husband.
On 31 August 2010 the Federal Magistrates Court made an order appointing Ms W of CH Accountants as single expert to prepare a valuation of the husband’s business.
On 1 November 2010 the Federal Magistrates Court transferred the proceedings to this Court.
On 22 November 2010 the husband borrowed $50 000 from Mr I to pay to the wife. I shall refer to this matter again below. The husband paid the wife $50 000 that day. This was in partial compliance with the preliminary costs order but $3000 was by way of spousal maintenance.
By March 2011 the husband had ceased paying spousal maintenance. The husband paid spousal maintenance for approximately six months. The wife had been working on a part time casual basis at a shop.
In May 2011 the wife commenced working as a casual cleaner with a hotel in Melbourne.
In mid-2011 the husband commenced representing himself in the proceedings.
In October 2011 the wife commenced working as a factory hand with a company in Melbourne.
On 17 December 2011 the parties divorced.
On 15 March 2012 the wife filed an Application in a Case seeking further litigation funding and orders for updated valuations.
In January 2012 the first of the 22 home units at MW was sold.
On 30 August 2012 Mr C, who had been chosen by the parties as single expert to value the relevant “properties/assets” was cross examined by the husband’s counsel. Mr C’s report had previously become available to the parties. The husband said, correctly as it turned out, that the report contained a very considerable number of errors. I decided that, rather than await the trial for such matters to be ventilated, I would provide an opportunity for the parties to cross-examine Mr C in advance of what appeared to be a trial which would require several days. It became clear that there were many errors in various of the valuation reports prepared by Mr C. Mr C indicated that he would correct the errors in his valuation reports at no cost to the parties and that the revised valuations would be available by 24 January 2013. The husband made an application that Mr C be discharged as single expert and this application was dismissed.
On 21 December 2012 orders were made restraining the husband from communicating with Mr C or Ms W with some exceptions.
In January 2013 it became clear that there was no longer a parenting dispute in the sense that the wife would not be seeking any parenting orders. The wife accepted that the children had become completely estranged from her. The proceedings continued on the basis that only property matters remained in dispute.
In January 2013 the second last remaining home unit at the MW property was sold. This brought the total proceeds of sale of the home units to $5 800 000. One unit remained and this will be referred to again below.
On 26 February 2013 Dr Yavuz was made a party to the proceedings. Other orders made required the husband to provide CH with the documents requested by them to enable the business valuation to be prepared. I shall refer to this again below.
On 3 March 2013 updated valuations by Mr C were received.
On 4 April 2013 Dr Yavuz filed an Application in a Case seeking repayment of $2 000 000 alleged by Dr Yavuz to be owed to him by the husband and wife.

Credit

Wife

The wife gave her evidence in cross-examination through a Turkish interpreter. It was clear that she had a very basic working knowledge of the English language which she said had improved since separation. Turkish had been the main language spoken at home during the course of the marriage. At times there appeared to be some difficulties for her imposed by interpretation and translation.
However, even accounting for these difficulties, there were significant problems in terms of the wife’s credit. At one point the wife said that she was not very good with dates. At another point in the cross-examination the wife said that her mind was not clear.
It became quite obvious that she was being untruthful, at least in respect of one matter. This was as follows. The wife said that immediately after separation she travelled to Melbourne and took up temporary accommodation with her uncle, his wife and family. The wife said in her affidavit that after separation she attended at an ANZ Bank branch to withdraw funds from the joint account which she thought were approximately $3750. She said to her surprise she was told there was an additional $40 000 in the account. She said that she withdrew from the parties’ joint ANZ Bank account the sum of $43 750. She said that because she did not have any account at that time, she deposited the money into the bank account of her cousin. The wife then gave details about how she spent the money.
At the hearing the wife gave further evidence in chief about this matter. She said that the second day after separation, which I assume was Sunday, 22 February 2009, she told her cousin that she needed money and gave him her passbook. She said there was $3500 in the passbook. She said that all the banks were closed and that her cousin was looking for a bank. She said that her cousin found on the computer a bank that was open in the city. She said that when they went to the bank she informed the bank officer that she wanted to close the account and the bank officer informed her that there was $40 000. The wife said that she was shocked. She said that the officer asked her to see another bank officer who checked the computer and said that there was $43 500 and that she would give it to her.

The wife’s counsel, during questions to the wife in reply to certain matters deposed in the husband’s affidavit informed the wife that the husband had specifically suggested that she well knew beforehand that the money was there because she arranged to have it transferred to an account from another ANZ account online. The wife replied that she could not do it because she did not understand computers.
The wife was cross-examined in considerable detail about this matter. It became clear that there was only approximately $3750 in the joint ANZ passbook savings account on the day in question, namely 22 February 2009.
The wife denied that she had another account with the ANZ Bank. The wife insisted that she only ever had one account, namely the said joint account.
The husband subsequently sought from the ANZ Bank a transaction trace on a particular ANZ Online Saver Account of his. The bank confirmed that $40 350 on 23 February 2009 was not processed using a registration number under his name. The bank indicated that the payment was credited to a specified account of the wife.
The inference that I draw is that the wife knew sufficient details of the account to be able to arrange, probably with assistance, an electronic transfer of funds from that account to an account which she had established.
The finding that I make about this matter is that the wife clearly told untruths about the details of this matter and notwithstanding that she was afforded ample opportunity to explain the details of what had actually happened she declined to do so.
This raises the most serious questions about the reliability of the wife as a witness. I have serious reservations about being able to accept the truthfulness of her evidence in numerous areas where it is unsupported by documentary evidence or that of other witnesses.

The husband

I have serious reservations about the reliability of the husband’s evidence. The husband has been mostly uncooperative in complying with the Court’s directions for making these proceedings ready for trial. Notwithstanding that he was informed on numerous occasions, not only by the Court but by the wife’s legal representatives, that he had an obligation to make a full and frank disclosure, he has failed to do so. I shall refer in more detail to this below.
He contacted both expert witnesses to the point where, Mr C the real estate valuer, was unable to continue in the proceedings. At one point Mr C wrote to the Court complaining about the husband’s behaviour and asked the Court to discharge him as single expert. In the case of CH Accountants, who were engaged to prepare a valuation of the husband’s business, the accountants indicated that their costs had increased significantly because of the amount of correspondence and questions raised by the husband with them. In any event, despite them having sent numerous communications to the husband asking him to provide documents to enable them to complete their valuation the husband failed to do so. Eventually, the husband provided an incomplete production of required documents, but so late that there was insufficient time for the expert to prepare a valuation.
On many occasions during his cross-examination the husband was unresponsive and said things which appeared to me as likely to have been perceived by him to favour his case. Time and again the husband portrayed himself as the victim in these proceedings. Yet he was the person who knew intimately the details of acquisition of the numerous items of real estate and of his business, and must have had access to a great number of relevant documents which he declined to produce either to the Court or to the wife’s legal representatives.
There was a final submission by learned counsel on his behalf to the effect that in considering the wife’s submission that the husband be found to have failed to make a full and frank disclosure the Court should not lose sight of the fact that the husband was self represented for much of the proceedings. This of course does not excuse a party from this fundamental duty in family law financial proceedings to cooperate in making a full and frank disclosure. In any event, the husband was represented in August 2012 on which occasion learned counsel who appeared for him in the trial cross-examined Mr C. It was also clear that the husband had been represented for some months prior to the trial. Yet there was still a dearth of relevant documents and the husband’s affidavit, while replete with criticisms of the wife was almost empty of any details about the acquisition of assets or detailed explanation about the various financial contributions by the husband and his brother Dr Yavuz in their partnership affairs.
In all the circumstances I regard the husband as a poor witness. Where his evidence is not supported by documentary evidence, I am reluctant to accept it.

Mr S

Mr S assisted the single expert real estate valuer Mr C.
I have referred above to difficulty which Mr C had in completing his valuations. As indicated above, Mr C was not available to attend Court for cross-examination on the basis that he said he was too ill to attend. Mr S informed the Court that Mr C was in poor health.
In any event Mr S had assisted Mr C in preparing his valuations.
There had been some discussions on the day before Mr S was cross-examined between a “shadow expert” valuer retained by the husband and Mr S. This shadow expert contacted Mr S about the valuations. This was done without the knowledge or consent of the wife or her legal representatives. This was an unfortunate and improper course.
Having said this Mr S was responsive to questions and he impressed me as being an honest witness. He made himself available at Court and obviously strived to do his best in the difficult circumstances where Mr C had become ill. I shall refer in some detail below to the evidence of Mr S, particularly as it relates to the valuation in issue in respect to the second Sydney property.
I regard Mr S as a truthful witness.

Dr Yavuz

Like the husband Dr Yavuz prepared his own affidavit apparently without legal assistance. This was unfortunate because Dr Yavuz made numerous assertions in absolute terms which, during the course of cross-examination, he had to concede were incorrect. For example, he said that the wife “never, ever worked while (he was residing at home)”. Clearly this was not the case because it was undisputed that she did work during the time.
In relation to Dr Yavuz’s assertions that he and the husband had an agreement which had been documented by their former accountant Mr K I shall refer to this matter in some detail below.
Dr Yavuz was more responsive to questions than either the wife or the husband. Notwithstanding this, I have reservations about the reliability of his evidence.

Ms FY

Ms FY is the sister of the husband and Dr Yavuz. She informed the Court that she prepared and typed her own affidavit and that she also typed her mother’s affidavit.
Ms FY said that she was motivated to prepare an affidavit after reading accusations against her in the wife’s affidavit which she considered to be quite damaging to her. She said that she and the wife had been very close and that the wife had confided in her about everything. Ms FY could not contemplate any possibility, and refused to accept, that the wife was unhappy in the marriage to the point where she threw herself from a motor vehicle on two occasions and took an overdose of medication with the consequence that she was hospitalised. That is until I assured her that even the husband had agreed that this had happened.
In these circumstances I regard Ms FY’s evidence to be of little assistance.

Mrs Y

Mrs Y is the wife of Dr Yavuz. I regard her evidence to be largely partisan. I found little assistance from this material.

Mrs TY

Mrs TY is the mother of the husband and Dr Yavuz.
There were real difficulties with her affidavit. She does not speak English and does not read or write English. She said that her affidavit had been explained to her at the time that she signed it. It appeared that the affidavit had not been read over to her. In these circumstances, over lunch, the affidavit was read by the interpreter to Mrs TY and she affirmed its truthfulness.
Notwithstanding this procedure Mrs TY was an unimpressive witness and I can place very little reliance on any of her material.

Ms KF, Mr OH and Ms AM

The affidavits of these witnesses were not challenged.

Dr Yavuz’s claim for $2Million

As indicated above in relation to the orders sought by Dr Yavuz, he asserts that the husband and the wife have a liability to him of approximately $2 000 000. This claim is said to arise out of circumstances in which Dr Yavuz said he sold investment properties and his home, used the major part of the proceeds of sale to fund the purchase of partnership properties, that he paid interest on partnership assets using $341 701 from his own sources, that he also paid the proceeds of sale of his taxi to partnership assets and that the interest on the capital amounts would bring the total for his efforts in this regard to approximately $2 000 000.
It was submitted on behalf of each party that the Court has jurisdiction to determine Dr Yavuz’s claim on the basis that it is necessary to do so in order for the Court to identify the legal and equitable interests of the husband and the wife in property. I accept these submissions.
Dr Yavuz said that he and the husband are longstanding business partners.
As indicated above Dr Yavuz purchased two properties at 21 and 23 X Street, WG in approximately May 1995 for $162 000 and $170 000 respectively before the commencement of his business relationship with the husband.
He purchased the first business, this being at T, in 1996 and sold his taxi in September 1997. As was also indicated above, the husband operated the business.
In 2001 Dr Yavuz sold the T business and applied the proceeds of sale to the purchase of the N business.
In May 2002 Dr Yavuz sold his 21 and 23 X Street, WG properties for $840 000 to a developer. He said that he discharged the mortgage and used the balance of the proceeds of sale towards funding the purchase of a commercial property registered in the names of himself and the husband.
The U business was sold in 2004 and the net proceeds of sale were applied to purchase a property industry business which became F Business.
In 2007 Dr Yavuz sold his home at BW for $689 000. He said that after paying the mortgage, the balance was applied towards the purchase of another commercial property with the husband.
Dr Yavuz asserted that the major part of the proceeds of sale of his properties at X Street, WG and BW were applied by him to the acquisition of assets by either his partnership with the husband or by their company TT Pty Limited, which is owned by them in equal shares.
Both Dr Yavuz and the husband asserted that their accountant at the time (Mr K) was aware that money was owed by the husband to Dr Yavuz in respect of business funding. They both asserted that they had signed an agreement prepared by him about this at the time. Dr Yavuz said that he had been unable to find that agreement.
On 19 January 2010 the husband and Dr Yavuz signed an agreement between themselves and their company TT Pty Limited which purported to acknowledge that Dr Yavuz had contributed $1 350 000 more finance to the company than had the husband and that these monies were partly obtained from the sale of properties owned by him.
Dr Yavuz said that the purpose of this agreement was to update the original agreement which had been lost. He said that in the event that the partnership was dissolved he wanted to be protected in relation to the additional funds he said that he had contributed to the partnership. Dr Yavuz denied that the purpose of the agreement was to protect his interests against the wife’s claim in these proceedings. With some reticence he conceded that when he went to Firm G for the purpose of preparation of the shareholders agreement, he was aware that the wife had issued these proceedings. But he said that this was not the motivating factor. He said that the motivating factor was to update the original agreement so that in the event that the partnership was dissolved he would be protected in relation to the additional contribution he had made to the partnership.
During cross-examination the husband was asked how he and his brother had arrived at the sum of $1 350 000. The husband said that the accountant worked it out.
By a letter dated 7 June 2010, the accountant for the husband and Dr Yavuz, a Mr L of AA Accounting Services Pty Limited indicated that Dr Yavuz had personally contributed approximately $1 350 000 “extra” money to the partnership. He also said that Dr Yavuz and the husband had “always” made it known to him that this money would be repaid in the future to Dr Yavuz if and when the partnership was to be dissolved “as these were extra funds from Dr [Yavuz].”
Neither the husband nor Dr Yavuz called the original accountant. They said they do not know his current whereabouts. Nor did either of them put their current accountant on affidavit nor call him to give evidence. I infer that whatever evidence he might have given would not have assisted Dr Yavuz’s case in this regard.
In approximately June 2010 Dr Yavuz drew down $341 701 from two personal home loans and paid the partnership interest bill due to the ANZ Bank. He asserted that, with interest, the husband owes him approximately $400 000 in respect of this advance to the partnership.
Given the nature of Dr Yavuz’s claim, it was somewhat surprising that there was little by way of documentary evidence to support his assertions about business arrangements between himself and the husband.
The evidence about this business partnership is far from satisfactory. Doing the best I can in difficult circumstances, in my view the business partnership commenced upon Dr Yavuz purchasing the T business in 1996, that is, approximately a year after the husband’s marriage. It is clear that the husband operated this business. The husband said during cross-examination that he and Dr Yavuz “owned” the business and that he and Dr Yavuz had bought it. Yet there were no documents before the Court to establish the details of this purchase.
In my view, there are a number of difficulties with this claim that the husband owes money to Dr Yavuz. Firstly, it is based merely on the bare assertions by the husband and Dr Yavuz that Dr Yavuz has made contributions to their business partnership in excess of whatever contributions the husband has made thereto by approximately $2 000 000 and that Dr Yavuz requires repayment in this amount. In my view, for Dr Yavuz to be able to sustain this claim, it would be necessary for him and the husband to have put before this Court, sufficient of the relevant details about their business dealings supported by evidence in proper form from which the Court could have been in a position to make appropriate findings. It is the husband and Dr Yavuz who have had the intimate knowledge of the relevant transactions and the financial details and it is they who have had access to the relevant documentation.
The onus lies on Dr Yavuz and the husband to establish that monies are owed by the husband to Dr Yavuz as his business partner. Neither the 19 January 2010 agreement about the alleged debt nor the 7 June 2010 letter from the accountant Mr L take the matter any further than the assertions by the husband and Dr Yavuz because they are both really further manifestations of the same assertions.
The husband said that the purpose of the 19 January 2010 agreement was because Dr Yavuz said he wanted to be protected and they could not find the document prepared by the first accountant. That is Dr Yavuz wanted to make sure that if the litigation between the husband and wife continued he would receive the “extra money” he had put into the partnership. The husband said that it was just a coincidence that the wife had recently filed her application for a property settlement.
I must say that the view I have about this matter is that it is more probable than not that the 19 January 2010 document was brought into existence because the husband and Dr Yavuz were concerned that the wife had commenced proceedings. In my view it is more probable than not that the 19 January 2010 document was brought into existence in an endeavour by Dr Yavuz and the husband to have some evidence to support their assertions.
In any event, the 19 January 2010 is inaccurate in the sense that it purports to contain an acknowledgement that Dr Yavuz had advanced the $1 350 000 to the company TT Pty Ltd whereas both Dr Yavuz and the husband asserted that the money had been used for the purchase of partnership property. Neither Dr Yavuz nor the husband were able to explain in any detail how the amount of $1 350 000 had been arrived at.
The husband conceded that he had been unable to locate any agreement or other document about the alleged debts owing between him and his brother one way or the other.
The husband and Dr Yavuz have not conducted their business affairs on the basis of any such liability. The partnership accounts do not support their assertions about this liability. The detailed balance sheet for the partnership of the husband and Dr Yavuz as at 30 June 2009 prepared by their accountants AA Accounting Services Pty Limited, shows Proprietors’ Funds as being $805 060 for Dr Yavuz and $657 860 for the husband. This is a differential of $147 200. The differential as at 30 June the previous year was exactly the same. And the differential for the same time the previous year was the same. This is a vastly different amount from the $1 350 000 differential now asserted by the husband and Dr Yavuz.
And the financial statements make no reference to any loan account which might support the assertions of the husband and Dr Yavuz. The husband also conceded that the Income Tax Returns for the company TT Pty Limited did not include any reference to any loan account showing money owed by him to Dr Yavuz.
In addition, I note that when the husband and Dr Yavuz applied to the ANZ Bank in July 2009 for two loans to a total of approximately $3 500 000 there was no mention of any such liability by the husband to Dr Yavuz.
In my view, the onus on Dr Yavuz and the husband to establish the alleged liability has not been discharged. It might have been the case that in the event that the husband and Dr Yavuz had put appropriate documents before the Court to explain why it was that the relevant partnership accounts showed a differential of $147 200 in Proprietors’ Funds the Court might have been in a position to find that a liability in some amount might have existed between the husband and Dr Yavuz. But they did not do so, nor did they present their cases in this manner.
In all the circumstances I am not persuaded that the husband owes any money to Dr Yavuz on account of their business activities. Accordingly, I reject Dr Yavuz’s claim in its entirety.

Value of the Husband’s Property Industry Business

The husband said that in 2004 he and Dr Yavuz paid $833 000 for the business. He said that the value of such businesses is based on a multiple of recurring income from particular regular transactions. He said that there is no goodwill in sales. He said that his agency has between 236 and 250 rental properties but properties which have been re-leased cannot be taken into account. He said that commissions from the regular transactions on this basis are approximately $285 000 per annum and the appropriate multiple is approximately 1.75. This would produce a value for the business of approximately $500 000 (1.75 x $285 000 = $498 750). He said that he would agree with a valuation of $500 000 for the property industry business.
The husband acknowledged during cross-examination that in his financial statement filed in January 2012 he estimated his half share of the business to have a value of $300 000. He agreed that on this basis the business then had a value of $600 000. He said that since that time there has been a downturn in business which is why he now estimates the value of the business to be $500 000.

There was a submission on behalf of the wife that in reality it is the husband who is the sole owner of the property industry business and this should be represented in the schedule of assets as solely owned by the husband. It was submitted that Dr Yavuz has nothing to do with the operation of this business. This was denied by both the husband and Dr Yavuz. Dr Yavuz said that he has been involved in decisions about hiring staff and renovating the premises. In any event, I do not accept this submission on behalf of the wife. The position is that the company TT Pty Limited owns the property on which the business is conducted and it also owns the property industry business. The husband and Dr Yavuz own TT Pty Limited in equal shares. Accordingly I shall include the husband’s interest in the business as a half interest.
As indicated above, in August 2010 Ms W was appointed as the single expert to value the property industry business. It is clear that Ms W has encountered difficulties in obtaining relevant documents from the husband to enable her to prepare her valuation. On 30 August 2012 I ordered that the parties forthwith comply with the requests of Ms W to allow her valuation to be completed and available to the parties not later than 24 January 2013.
Notwithstanding this order, Ms W wrote to the husband on 13 December 2012 indicating that she had not received a response to any of her requests for financial information. She referred to having sent two letters and four emails to the husband between August and December 2012. Ms W specified the documents she required including financial statements and income tax returns for specified entities, details of the relevant business records for 2011, payroll summaries for specified entities as well as the income tax returns for the husband for the 2011 financial year.
On 21 December 2012 it was made clear to me that the husband had been contacting both single experts directly and that this had become counter-productive. Apparently he had become frustrated about what he regarded as the high level of their fees and other matters. He said that he wrote up to a dozen letters to CW. On 21 December 2012 I ordered that until the case was back before me on 26 February 2013 the husband was restrained from having any communication with Ms W (or Mr C) apart from forwarding to Ms W any document or information requested by her.
On 14 January 2013 again Ms W wrote to the husband saying she still had not received a response to her request for financial information and indicating that she was unable to prepare her valuation report until the information was provided.
Ms W finished working with CW in February 2013 and her successor was Ms E supported by Ms H.
On 31 January 2013 Ms E wrote to the husband seeking the same information. The husband indicated he was concerned about the costs of further work.
In any event Mr Fanaian, solicitor, commenced representing the husband in early February 2013. He indicated to CW that some of the relevant material had been produced on subpoena. Much of the other required documentation was provided. But it is clear from an email communication from Ms H dated 4 April 2013, that was 4 days before the trial was scheduled to commence, that many of the required financial documents were still outstanding. Needless to say, CW were unable to prepare their valuation of the husband’s property industry business in time for the trial.
It was submitted on behalf of the husband that although it took some time to do so, the husband produced the required material and that the Court should not find that he has failed to make a full and frank disclosure, particularly because for much of the relevant time the husband was self-represented. I must say I am far from persuaded about this. It is obvious that the husband has been in control of the relevant documents, not only those sought by CW, but an abundance of other documents relevant to the proceedings.
He has engaged in argument and unnecessary correspondence with both single expert witnesses, in my view, with the consequence that the Court has only been able to avail itself of some limited assistance from Mr C. CW have been unable to produce their valuation report and, in my view, the responsibility for this lies clearly at the hands of the husband.
Where does this leave the Court in terms of having to place some value on the husband’s property industry business? It was submitted on behalf of the husband that the Court should accept the husband’s estimate of value for the business of $500 000. On the other hand it was submitted on behalf of the wife that the husband’s behaviour in failing to cooperate in the Court process has resulted in a proper valuation not being available to the Court and that in these circumstances the Court should find that the business has the value attributed to it in the accounts of its owner TT Pty Limited, that is $833 875.
I note that the 30 June 2009 balance sheet for TT Pty Limited includes under the heading “Intangible Assets” the “[Property Industry] Business Purchase” at $833 875. This is the basis of the submission on behalf of the wife.
In my view, the difficulty with this is that it is obvious to me that this cost not only refers to the purchase of the property industry business, but includes the land on which the business is conducted because the land, the sixth N property, is not otherwise described in the balance sheet.
The Court is in a most unsatisfactory position so far as determining the value of the property industry business is concerned. The Court has to find a value for the husband’s interest in this business. Because of failures on the part of the husband to provide relevant documents to CW, they have not been able to complete the business valuation.
I suppose one possible course might have been to adjourn the trial to enable a business valuation to be completed. No such application was made. Another possible course might be to order the sale of this business. But the business provides income to the husband and he is the parent solely responsible for the children. In any event, the wife did not seek such an order.
The husband estimated the business to have a current value of $500 000. As indicated above, in January 2012 he swore in his then financial statement that his half share of the business had a value of $300 000. Doing the best I can in these very difficult circumstances I find that the business has a value of $600 000. This might well be very unfair to the wife because the husband has failed in his duty to make full and frank disclosure to the expert with the consequence that there is no business valuation. But I am not prepared to order a sale of the business for the reasons above.

Submissions

Unfortunately, due to the loss of the first afternoon of the trial because the husband’s counsel was not available, there was insufficient time on the fifth day of the trial to complete the submissions. In these circumstances I permitted each party to forward written submissions to me, which they did.
I have read the written submissions on behalf of all three parties. In the husband’s second set of written submissions he annexed various documents which were not tendered as evidence before the husband’s case was closed. I have refrained from taking any of this material into account.

The Applicable Law

Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the recent case of Stanford v Stanford (2012) FLC 93-518.
In Stanford the majority said (at page 86,640) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court majority went on to say (at page 86,642) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

The process of endeavouring to ascertain the parties’ legal and equitable interests in property has been very difficult.
It was submitted on behalf of the wife that the Court would not be able to be confident that the entirety of the assets of the husband available for division between the husband and the wife will be able to be clarified. I accept this submission.
I am satisfied that the husband has fallen well short of bringing to these proceedings an appropriate level of co-operation. He is the person who has intimate knowledge of the circumstances of acquisition and sale of all of the relevant properties and businesses. Yet there has been little detail about relevant matters in his affidavit. Although Dr Yavuz became a party quite late in the proceedings, a similar observation can be made about lack of detail in his evidence. The inference I draw from this is that the husband and Dr Yavuz, both experienced businessmen, have chosen to take an approach to this litigation along the lines that it would be more likely to favour their interests for them to provide as little assistance to this Court as possible and then not in a timely manner.
As was also submitted on behalf of the wife, the usual processes of assistance to the Court by court appointed single expert witnesses have failed in this case. I am satisfied that the husband has acted otherwise than in accordance with his duty as a party in the proceedings towards each of the single expert witnesses in this case, Mr C, Ms W and Mr S. As indicated above, it became necessary for me to make orders restraining the husband from approaching Mr C and Ms W other than for specific purposes as defined by the orders.
I have referred above to the difficulties experienced by Ms W and others at CW as a consequence of the husband’s lack of co-operation.
In the case of Mr S, the husband, improperly in my view, instructed his legal representatives to arrange for a meeting between the husband’s “shadow expert” and Mr S to discuss the report of Mr S without any notification to the wife.

There are a number of issues

In relation to the husband’s property at WN, the husband said that this property is worth $450 000. On the other hand, Mr C and Mr S as single expert, placed a value of $550 000 on the property. There were some questions about this valuation apparently by the husband’s “shadow expert” as alluded to in the revised valuation by Mr S dated 10 April 2013 (Exhibit 10). But Mr S was not cross-examined about his opinion of value of this property so I regard this opinion as being unchallenged. Accordingly, I accept that this property has a value of $550 000.
There was a reference in the husband’s financial statement sworn 16 March 2010 to $5560 in an ANZ Bank account in trust for two of the children and some Telstra shares. The husband said that the Telstra shares had been sold and that the children’s accounts had been closed, apparently these monies having been used by the husband to fund part of what he was ordered to pay the wife by way of preliminary costs. It is clear that there remains a total of $16 750 worth of shares in NWR and GLM. These will be included in the pool of property at the value of $16 750 which was the husband’s admission of their value.
Also in his financial statement sworn 16 March 2010 the husband admitted an interest in the Yavuz family trust worth $35 000 and an interest in the KK Superannuation Fund with an estimated value of $2200. In his financial statement sworn 20 February 2013 the husband admitted that he owned household contents with a value of $20 000 and an interest in the RR Superannuation Fund with a value of $10 000. I shall include these assets in the schedule setting out the parties’ legal and equitable interests in property on the basis that they are admissions against the husband’s interest.
There was also an issue about the value of the partnership second Sydney property. It was submitted on behalf of the wife that this should be brought in at the value of $3 150 000. On the other hand, the husband had retained a “shadow expert”, Mr P of O Group who suggested apparently that the valuation ought to be adjusted down to $2 630 000.
A number of valuations were prepared by Mr S and Mr C, both registered valuers. As indicated above, there was cross-examination of Mr C in August 2012 well prior to the hearing of the substantive proceedings. As it turned out, Mr C was not available for cross-examination whereas Mr S was cross-examined during the course of the trial.
The valuers inspected this property on 11 June 2010. Their opinion of its value at the time was $3 020 000.
The same valuers prepared a revised valuation report dated 1 March 2013. In this report they expressed the opinion that the property had a current market value of $3 150 000. The valuers approached their task by capitalising the net maintainable market income generated by the property after allowing for property rates and taxes, at an appropriate market yield to establish the property’s current market value on a fully leased basis. Appropriate capital adjustments were made to reflect the specific cashflow profile and general characteristics of the property. This produced what the valuers described as a market range of between $3 048 452 and $3 258 690. On this basis they assessed the value at $3 153 571 and rounded this down to $3 150 000.
The valuers also considered comparable sales evidence within the geographical area to provide a check on the likely rate of return per square metre of gross building area. Based on returns in respect of comparable sales evidence, the valuers established what they described as their upper quartile value and lower quartile value on a rate per square metre of firstly, gross building area and secondly, improved site area. They arrived at a figure for this property of a range from $3 000 000 to $3 300 000 of which $3 150 000 was the mean.
Mr S was cross-examined by each of the three learned counsel about this valuation. Unfortunately the situation had become somewhat more complicated by the fact that the husband had retained his shadow expert as indicated above and that expert had been speaking directly with Mr S without this having been disclosed to those representing the wife.
Subsequently, Mr S revised his valuation and a report to this effect was dated 10 April 2013 which was during the course of the trial. This valuation became Exhibit 10 in the proceedings. Mr S revised the valuation for the property from his previous $3 150 000 down to $2 900 000. He indicated that having regard to capital costs for replacing the air-conditioning unit and reinstating the external façade of the property which came to $250 000 he had decided to make what he described as a “one off” adjustment of this amount from the previously assessed value of $3 150 000. Mr S said that the rental covenants in the lease were such that the property owners were liable for such capital cost in order to maintain the contract rent.
In arriving at the original $3 150 000 valuation Mr S adopted a yield of 7.5 percent which after considering the reduction of $250 000 to arrive at the valuation of $2 900 000 Mr S said the revised yield equated to a figure of 6.9 percent. He was cross-examined by learned counsel for the husband in relation to this yield figure. Apparently the husband’s shadow expert had suggested an appropriate yield was 9.68 percent, which would, if correct, have reduced the value of the property significantly. Mr S indicated that in his opinion such a figure was too optimistic, especially in regard to the institutional style tenant in occupation, namely Westpac Banking Corporation.
There was a strong submission on behalf of the wife in support of the Court finding the value of the second Sydney property as being in accordance with the revised opinion of the valuers dated 1 March 2013, namely $3 150 000. Firstly, it was submitted that it was quite improper for the husband to have arranged for a conference between his “shadow expert” and the single expert. It was further submitted that the expert accepted without sighting any evidence, that $250 000 had been spent on the alleged repairs and then deducted the cost of those repairs from the $3 150 000 valuation. It was submitted that during cross-examination it became apparent that Mr S had stayed up the night before giving evidence until 3.00 am preparing his revised report, the inference being that he had become too tired to concentrate. It was submitted that Mr S was confused because while confirming that a prospective purchaser would make allowances for future capital expenditure commitments, he was unable to explain why past capital expenditure would reduce present value of the property. It was submitted that as a matter of simple logic that cannot be the case unless perhaps it had been done in a defective manner which had not been suggested.
I must say that notwithstanding the detailed cross-examination by both counsel for the husband and counsel for Dr Yavuz about this valuation, I am not persuaded to the correctness of Mr S having revised his 1 March 2013 downwards as indicated. I accept that as Mr S said, valuation is not a perfect science but rather it is a form of art. Despite Mr S having noted that there had apparently been a bank valuation of the property at $2 300 000 (about which there was no evidence in proper form), which in any event Mr S thought was too pessimistic, there are a number of difficulties in my view with the revised valuation.

Firstly, as learned counsel for the wife submitted, in my view it was quite improper for the husband to have arranged the meeting between his “shadow expert” and Mr S without first seeking the agreement of the wife. This meeting has obviously had significant influence on Mr S’s confidence about his 1 March 2013 valuation.
The second difficulty, in my view, is that there was no evidence in proper form to support the allegation that $250 000 had been spent in the manner suggested. In these circumstances, in my view, the foundation for the revised valuation simply falls away. However, even if I am wrong about this, I am not persuaded that it is appropriate simply to deduct the entirety of the alleged $250 000 spent as Mr S was persuaded to do. One could accept that if the lease required services offered by the building to be delivered in a particular manner, then cost could be involved by way of capital expenditure to maintain such services. But I would have thought that as a matter of logic, such expenditure would be apportioned over a number of years or perhaps even for the period of the lease. And in any event, as was submitted on behalf of the wife, the necessity for money to be spent on repairs or replacements in the future would be a relevant consideration for a prospective purchaser (as it would affect yield) but the revised valuation had taken into account the assertions that the money had been spent in this case, therefore it could not be a future cost. It was not explained to my satisfaction how it could be appropriate simply to deduct from the previous valuation money already spent.
In all the circumstances I accept the valuers’ opinion in their report dated 1 March 2013 that the second Sydney property has a value of $3 150 000.
In relation to the property owned by the husband in partnership with Dr Yavuz, at the commencement of submissions, learned counsel for the wife submitted that where the single expert valuations for the various items was a lower amount than the amount admitted by the husband, the Court should accept the husband’s admitted value. I indicated that I had conducted the trial on the basis that I had understood that in respect of these properties the only valuation of the expert which was in issue was that in relation to the second Sydney property.
After discussions between counsel about this matter Mr Puckey for the wife adopted the course in accordance with my understanding and only addressed the issue of the value of the Sydney property. The consequence is that in relation to the other properties owned by the partnership I have adopted the valuations of the single expert.
There is significant issue between the parties concerning liabilities. I have dealt above with Dr Yavuz’s assertion that he is owed approximately $2 000 000 by the husband and the wife.
The husband also asserted in his affidavit that there is an amount of $607 750 owing to a building supplies company, J Company. During the hearing the husband said that this liability had been reduced to $128 000. The husband said that these monies are owing in respect of material which was provided for work at the second P property and the development project of HH Pty Limited at MW. The husband said that this latter project was a disaster. He said that he and Dr Yavuz paid too much for the land and then, being inexperienced in property development, they lost a significant amount of money. The only remaining asset from this development is the home unit 6, MW Property which has a value of $350 000.
The only evidence of this alleged liability is a tax invoice dated 14 December 2012 for $552 500 plus GST annexed to the husband’s affidavit from J Company. The husband said that this invoice has not been paid. In my view, the husband and Dr Yavuz must be in a difficult position in respect of this matter. The wife and this Court, as well as the earlier court, have been seeking details about the husband’s business activities now for some years. Yet few of those details have emerged. It is the case that the husband did send to the wife’s solicitors in March 2013, approximately three weeks prior to the commencement of the hearing, details of the sale of the individual home units in the MW development which also showed that the bulk of the proceeds of sale were paid either to the ANZ Bank or to the builder, J Company. However, the husband has provided few details in relation to the acquisition of the property involved let alone any accounting of the proper costs of the project. He simply says to the Court, well the project has lost money, the bank delivered an ultimatum to us to sell the units and there are still some outstanding costs. In my view this is quite unsatisfactory and is a further demonstration of the husband’s failure to make a full and frank disclosure of his financial affairs. In these circumstances, although I cannot discount the possibility that a $128 000 liability might exist, in my view, in the absence of details about this development of the MW property and work at the P property, such would not be a liability which should be brought into account against property which is available for distribution between the husband and the wife.
The husband also asserts that there is $178 900 owing to SP Pty Limited in respect of the MW property development. The husband annexed to his affidavit an undated quote in the amount of $178 900 for work at MW property. There is no evidence in proper form about this alleged liability. In any event, my view about this matter is the same as in respect of the alleged liability to J Company. In all the circumstances I do not accept this liability if it exists, is one which should be brought into account against the property available for distribution between the husband and the wife.
The husband also asserts that $120 000 is owing to the Office of State Revenue with respect to land tax. It was submitted on behalf of the wife that the Court ought not take account of this liability on the basis that it is part of the ongoing costs of the business of the husband and Dr Yavuz of investing in property. The husband said that the rent from the investment properties and the costs involved with the properties were about even. Accordingly, I do not propose to include this alleged liability as it ought to be paid in the ordinary course of business out of rent received.
I note that the company TT Pty Limited has a $16 000 debt to the Australian Taxation Office. I propose to allow the husband his half share of this being $8 000.
The husband asserts that he owes loans to members of his family to a total of $230 000. The evidence about these alleged loans is unsatisfactory. But in any event, for the reason that I am satisfied that the husband has not made a full and frank disclosure, I do not propose to take account of these alleged loans. To the extent that the husband might owe one or other member of his family money this will be a matter for his personal liability.
I take the same approach in respect of the husband’s assertion that he owes his accountant $27 500. There is no explanation about what work this account was provided for.
The husband also asserts that he owes Mr I the total sum of $180 000. Mr I swore an affidavit to this effect and he was not cross-examined. He said that this total emanated from an amount of $25 000 loaned in June 2010, $50 000 which was the subject of a cheque drawn in favour of the wife in November 2010, which I understand was in respect of part of the $70 000 preliminary costs ordered to be paid by the husband to the wife, various cash amounts totalling $18 000 between March and June 2012 together with compound interest on all amounts loaned. Mr I said that the arrangement that he has with the husband is that interest would account for the difference between the principal loans and the outstanding total of $180 000. While I accept that this money was loaned, notwithstanding the absence of any challenge by cross-examination to this evidence, I cannot accept that it would be reasonable to take into account as against the interests of the wife what would appear to be a rate of interest in respect of these loans well in excess of commercial rates. In my view the husband is to be personally liable for any interest. I propose to bring this liability into account at $93 000.
The wife asserts that she owes a Mr BZ $27 220 but there was no evidence in proper form to support this. I do not propose, therefore, to bring this into account.
The husband also said that he owes Centrelink $8781, Dunn and Bradstreet $1000, a personal land tax bill of $7000 and a credit card liability. In respect of these matters, in circumstances where the husband has failed to make a full and frank disclosure about his financial affairs, I do not propose to take these alleged liabilities into account as against the wife.
On this basis, the parties’ legal and equitable interests in property and superannuation consists of the following:-

Husband’s Property

   $

1.         WN property

550,000

2.         Furniture, furnishings and household contents

20,000

3.         Shares in NWR and GLM

16,750

4.         Superannuation

12,200

5.         Yavuz Family Trust

35,000

^{_____________}

$633,950

Property owned by husband in partnership with his brother

             $

1.         T Property

480,000

2.         First P Property

950,000

3.         First Sydney Property

2,200,000

4.         First N Property

575,000

5.         Second Sydney Property

3,150,000

6.         Second N Property

240,000

7.         Third N Property

240,000

8.         Fourth N Property

240,000

9.         Fifth N Property

850,000

10.      Second P Property

400,000

11.      MT Property

780,000

^{_____________}

           Total

$10,105,000

Less ANZ Bank loans

$6,285,407

^{_____________}

Total

$3,819,593

Husband’s 50 percent interest

$1,909,796

TT Pty Limited

   $

1.         F Business

600,000

2.         Third P Property

860,000

3.         Sixth N Property

700,000

^{_____________}

           Total

$2,160,000

Less ANZ Bank loans

$1,350,000

^{_____________}

Total

$810,000

Husband’s 50 percent interest

$405,000

HH Pty Limited (Trustee of the Yavuz Family Trust)

$

1. Unit 6, MW Property

350,000

Husband’s 50 percent interest

$175,000

Therefore:

$

Husband’s solely owned property

633,950

Husband’s 50 percent interest of property owned in partnership with his brother

1,909,796

Husband’s 50 percent interest in property owned by TT Pty Limited

405,000

Husband’s 50 percent interest in property owned by HH Pty Limited

175,000

^{_____________}

Total

3,123,746

The wife’s property and superannuation consists of the following:

$

1. 2003 Ford motor vehicle registered number …

5,000

2. Australian Super

4,300

^{_____________}

$9,300

Total property and superannuation

This is $3 123 746 plus $9300 which is $3 133 046.

Liabilities

As indicated above the only liabilities I propose to bring into account are:

$

1. Husband’s 50 percent liability for TT Pty Limited debt to the Australian Taxation Office

8,000

2. Husband’s debt to Mr I

93,000

^{_____________}

$101,000

Accordingly, the net property and superannuation has a value of $3 032 046 ($3 133 046 - $101 000 = $3 032 046).

Sub-Section 79(2)

Sub-section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In their recent decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:
In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
In the present case, the only assets the wife has consist of a ten year old motor vehicle the value of which the wife estimates is $5000, her superannuation benefit in Australian Super with an estimated value of $4,300 and her personal effects.
The wife has had the benefit of the $40 350 she removed from the joint account shortly after separation, the savings of $3750, the $70 000 preliminary payment and the very modest amount of spousal maintenance referred to above.
The wife is in debt to her solicitors for a substantial sum for unpaid legal costs in these proceedings and she has some personal liabilities.
In my view, this matter is clearly one where it would be just and equitable for the Court to make an order. The marriage continued for in excess of 13 years and there are three children. The wife has made contributions. Almost the entirety of the property is in the name of, or within the control of, the husband. The “principled reason” for interfering with the existing interests of the husband in his assets as referred to in Stanford (above) is that if the Court does not make an order, not only would the wife not have any property, but she would have a significant liability. This would be unjust and inequitable.

Contributions

The Kennon Submission

There was a strong submission on behalf of the wife that she suffered regular, ongoing incidents of domestic violence over the course of the marriage and that, accordingly, her contributions should be assessed as having been greater than those of the husband. She said that this included physical abuse, financial abuse, emotional and psychological abuse, isolation and denigration. The wife set out her assertions in some detail in her affidavit. It was submitted that this domestic violence made the wife’s contributions more onerous.
The husband and various members of his family denied that any domestic violence had been perpetrated by the husband on the wife.
Amongst other complaints, the wife said that in 2004, following an argument between the husband’s mother and the wife, the husband hit her repeatedly with a tube of carton wrapping until she became unconscious. She said she regained consciousness in the husband’s van and when she realised the husband was taking her back home she threw herself out of the moving van and suffered injuries.
The wife said that in 2006 the husband repeatedly hit her with his belt. She also said that in approximately late 2008 she took an overdose of Panadol after an argument involving the husband’s sister.
As indicated above, I have reservations about the wife’s credit. But Exhibit 18 consisted of notes of the wife’s hospitalisation at a Hospital in August 2007 which recorded similar complaints by the wife.
In these circumstances, I have the view that it is more probable than not that there is some truth about the complaints the wife makes about domestic violence.
However, the wife did not assert that the contributions were made all the more onerous by the acts of domestic violence.
In any event, I am not persuaded that the degree of violence has been such as to bring the situation within the principles enunciated by the Full Court of this Court in the case of Kennon v Kennon (1997) FLC 92-757. At pages 84,294 and 84,295 Fogarty and Lindemayer JJ said as follows:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79. We prefer this approach to the concept of ''negative contributions'' which is sometimes referred to in this discussion.
…
However, it is important to consider the ''floodgates'' argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s.79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect …
As I say, I am not persuaded that the circumstances of the present case are such as to bring it within the band of cases to which these principles apply.

Other contribution issues

There was an issue about whether or not the wife worked in any of the husband’s businesses. The wife said that when the husband commenced operating his first business in approximately 1996 she worked for three to four hours between 4.00 am and 8.00 am. She said that she undertook clerical tasks and that on Saturdays she cleaned the premises. She said that she cleaned mostly on Saturdays. She said that she did this for approximately five years until 2001 when the business was rented out.
The husband denied this and said that the wife “did on the odd occasion help”.
The wife said that she did similar work during the same hours following the husband’s purchase of the second business in 2001. She said that after a couple of years when the husband included the second N business in the business she worked in this business as well. The wife said that during the seven months that the second N business operated prior to it being rented out, she worked in both businesses.
The impression that I had from the husband’s evidence was that the wife did very little work in any of his businesses and that she has grossly exaggerated her contribution in this regard.
The husband’s mother Mrs TY said in her affidavit that the wife did not work except for a short period when she and other family members helped with the second N business. The husband’s mother also said that the wife did some cleaning for the property industry office but only on rare occasions. As indicated above I can place little weight on this material.
Dr Yavuz’s wife, Ms Y, said that she never saw the wife go to work at the N business but said that the wife did help at the second business for a short period as did the whole family. As indicated above, I can place little weight on this evidence.
As indicated above, Dr Yavuz said that the wife “never ever worked” while he was residing at the home and that she “never ever worked at [T business]” (paragraph 49). He did say however that the wife helped with the unpacking of stock for the second N business with the whole family and that “she did some cleaning work for some organisation like many of her friends did.”
The husband’s sister Ms FY said that she never saw the wife go to work at the T business and that she never saw the wife working at either of the T or N businesses which she said she called into on a regular basis. She said that the wife did help at the second N business as did she from time to time. She also said that various members of the family would go to assist with unpacking stock for the second N business.

Ms WW had been an employee at the N business from February 2002 to February 2004. She said that she never saw the wife work at the business. She also said that she did see the wife assisting with other members of the family unpack stock for second N business.
Mr JS was an employee at the N business between approximately 2003 and late 2004. He said that he never saw the wife work behind the counter and only saw her helping for a short period with clerical tasks over the Christmas period. He said that sometimes she did some cleaning around the office. He said that there were many months when he did not see her while he was working as receptionist.
Ms EY had been employed at the husband’s property industry business commencing in December 2004. She continues to work at the business but on a casual basis. She said that she could recall the wife doing some cleaning work but this was a rare occurrence.
Ms KF worked at the husband’s business between September 2006 and November 2008 as a senior manager. She said that the wife would do some cleaning around the office as well as some other cleaning jobs. She said this work was two or three occasions per month although some months there would be no work at all and that this continued over approximately twelve months. She also said that the wife would come and clean the office at times and do letter drops for the business.
Mr OH worked at the husband’s property industry business for approximately twelve months from August 2007 as a sales person. He said that he worked on Saturdays but would come in on odd days during the week. He said that during his period of employment he never saw the wife at the business.
Ms AM was employed at the husband’s business between April 2008 and January 2009 as a receptionist. She said that she and the wife used to do letter drops for the business, usually twice a month but some months not at all. She said that the wife also did some cleaning but this was mainly done before or after they did the letter drops.
The wife was cross-examined in detail about these matters. In my view, it is more probable than not that the wife has exaggerated her efforts in this regard. But I accept that from time to time the wife undertook work of the nature described by her.
I have referred above to the work which the wife undertook at the local Police Station and Courthouse.
At the commencement of the marriage the wife had no assets of significant value. She arrived in Australia with her personal property and effects.
At this time the husband’s property consisted of his interest in his investment property at WN subject to the mortgage.
The wife said that she was responsible for all of the cleaning, cooking and the children’s needs. She also said that she did the laundry and ironing for the whole family including the husband’s mother. She also said that she did the gardening and mowed the lawns. She said that she devoted most of her time, efforts and attention to the care of the children and running the household.
This was disputed by the husband. The husband appeared to have difficulty conceding that the wife was a good wife. He said the she was “a nice lady”. With encouragement, he conceded that she was a good cook, that she would very rarely complain, and that she was happy and content. The husband also had difficulty conceding that the wife did a good job caring for the children. In response to this question he said that he was at work all the time and that therefore he could not really answer the question. He said that the children were fed and that there were no bruises on the children so he assumed the wife was looking after them. Eventually the husband conceded that the wife cared for the children well until the later stages of the marriage.
During his cross-examination the husband did concede that the wife operated the second N business on her own for a short period, that she cleaned the property business office at times and that she undertook some outside cleaning jobs once or twice a month. But he did say that she did not work the hours she alleged. As indicated above, he is probably correct about this.
As indicated above, at the time of marriage the husband owned the property at WN subject to the mortgage. On the other hand, at this time the wife did not own any assets of significant value.
There is no question that the husband has worked very hard and that he has made almost the entirety of the financial contributions. The only financial contribution which the wife has made appears to have been from the income earned by her for a brief period when she undertook the cleaning work at the local Police Station and Courthouse. Having said this, I have noted that some material suggested that over some tax years income was apparently split between the husband and the wife for income tax purposes.
On the other hand the wife made the overwhelming contribution to the welfare of the family as homemaker and parent. She was the parent most responsible for the care of the children. The husband’s mother also contributed to the care of the children. But in my view this did not diminish the contributions by the wife as homemaker and parent because I am satisfied on all the evidence, including that of the husband, that the wife attended well to her responsibilities in this regard.
It was submitted on behalf of the husband that because of the husband’s business acumen and his initial contribution of the WN property the assessment of contributions should be significantly in the husband’s favour.
There was a further submission on behalf of the husband to the effect that if the Court was not persuaded about Dr Yavuz’s claim that he is owed $2 000 000 by the husband and the wife then it would be appropriate to consider the “extra money paid” by Dr Yavuz to the partnership as a financial contribution made on behalf of the husband to relevant property. In my view, this submission suffers from the same difficulties as the original assertions by Dr Yavuz and the husband about the $2 000 000. This is that relevant material has not been produced to establish the totality of contributions to partnership property by both Dr Yavuz and the husband and, as a matter of record, they have not conducted their business affairs in accordance with their assertions. Accordingly, I reject this submission.
On the other hand, it was submitted on behalf of the wife that the Court should find the parties’ contributions to have been equal.
In my view, over this marriage which continued for quite a substantial period, the parties having produced three children, when one considers the totality of contributions of the parties it is appropriate for the Court to assess their contributions as having been close to equal overall.
I accept that the husband’s initial contribution of the WN property was significant. But with all the subsequent contributions made by the parties now over a long time, in my view this contribution no longer has the significance which it initially had. I also accept that the husband has been very successful in business. But in my view, this does not translate into a finding about contributions overall substantially in his favour. The parties arranged their affairs so that the husband would be the breadwinner and the wife the children’s primary parent and homemaker. This Court has held since early in its consideration of property cases that the contributions by a homemaker and parent are to be considered in a substantial, rather than a token, way. See for example the case of Rolfe & Rolfe (1979) FLC 90-629; 5 Fam LR 146.
Having said this, I have the view that the assessment of contributions overall falls slightly in favour of the husband, 52 percent by him and 48 percent by the wife.

Section 75(2) matters

The wife is 37 years of age and she is in good health. She has no formal qualifications or training. She has had very limited education, apparently only having attended primary school in Turkey. She has only a very basic working knowledge of the English language.
The wife works in two jobs, firstly as a casual cleaner in a hotel earning between $300 and $575 gross per week. Her second job is as a casual factory hand from which employment she usually earns between $350 and $550 per week. Her gross income from both jobs is approximately $900 per week.
The wife pays child support of $404.25 per calendar month.
The wife has not re-partnered.
As indicated above, the wife had the benefit of $43 350 withdrawn by her from the joint ANZ Bank account in the days following separation and the $3750 in savings.
The wife spent this on her airfare to Melbourne, taxi fares, clothing, shoes, personal effects, general living expenses, a passport application, return airfares for herself and her cousin to Turkey, travel expenses in Turkey and Europe, some legal costs and disbursements and approximately $24 500 towards medical and hospital costs for her father in Turkey.
The wife has also had the benefit of the $70 000 preliminary payment to her by the husband pursuant to the order of the Federal Magistrates Court. Much of this was spent on her legal costs.
On the other hand, the husband said that his income is approximately $900 per week plus approximately $90 per week child support from the wife as well as rent from his investment properties. The precise details of the benefits which the husband receives from his business and investments are not clear to the Court. But they include a Mercedes Benz motor vehicle for the husband’s use, a separate motor vehicle for his mother to use and a business credit card. As I have said at various places in this judgment, I am not confident about what the precise details of the husband’s financial circumstances are.
The husband’s assertion that his income is approximately $900 per week is in marked contrast to what he declared in a loan application to the ANZ Bank.
In July 2009 the husband and Dr Yavuz made an application to the ANZ Bank for loans amounting to approximately $3 500 000. In the loan application (Exhibit 9) the husband declared to the bank that he had total assets with a value of $6 763 000 and liabilities of $672 116. He also declared that his base monthly salary was $18 000, that his share of rents received was $19 065 per month and that his total monthly expenditure was $17 792. He declared that this left him with $11 686 in uncommitted monthly income. During his cross-examination, the husband confirmed the correctness of this declaration.
The husband has the use of his mother’s large residence and he is assisted by his mother in the care of the children.
But the husband also has the sole responsibility for the care of the three children. Sadly, they are estranged from the wife and on present indications this sole responsibility is likely to continue until the children reach adulthood and become independent.
It was submitted on behalf of the wife that based on equality of contributions the s 75(2) matters in favour of each of the husband and the wife would cancel one another out so that the Court would make no s 75(2) adjustment.
On the other hand, it was submitted on behalf of the husband that his sole responsibility for the children weighed significantly in the husband’s favour. It was also submitted that the husband’s responsibility for the children meant that he could not work at the same rate as previously. I must say I have some doubt about the extent to which the last submission has application because it is clear that the children are assisted to a large extent by the husband’s mother who has always resided with them.
In my view, there is a considerable disparity between the capacities of the husband and the wife to earn income. Notwithstanding the husband’s responsibility for the children, in my view this disparity is likely to continue for the foreseeable future.
On the other hand, the husband’s responsibility for the children is a significant matter.
In all the circumstances, on the basis that the husband has failed to make a full and frank disclosure, so that I have little confidence that his income and property in reality is as he now asserts, and because it is possible that the value of his property industry business is higher than the Court has found, in my view there should be a small adjustment of 2 percent in favour of the wife in order to arrive at a just and equitable order.

Conclusion

The husband and the wife are to share the property and superannuation equally. As indicated above, this has a value of $3 032 046. So they are each to have property and superannuation with a value of $1 516 023.
The wife has the following property:

$

1. 2003 Ford motor vehicle registered number

5,000

2. Australian Super

4,300

^________

$9,300

To achieve property and superannuation with a value of $1 516 023 the wife will require a payment from the husband of $1 506 723 ($1 516 023 - $9300 = $1 506 723).
On the other hand the husband is also to have property and superannuation with a value of $1 516 023. The husband has the following property:

$

1.         WN property

550,000

2.         Furniture, furnishings and household contents

20,000

3.         Shares in NWR and GLM

16,750

4.         Superannuation

12,200

5.         Yavuz Family Trust

35,000

6.         Property owned by husband in partnership with Dr Yavuz less loans – husband’s 50 percent interest

1,909,796

7.         Husband’s 50 percent interest in TT Pty Limited less loans

405,000

8.         Husband’s 50 percent interest in HH Pty Limited

175,000

^{_____________}

Total

$3,123,746

But the husband has the following liabilities:

$

1.         50 percent liability for TT Pty Limited debt to Australian Tax Office

8,000

2.         Debt to Mr I

93,000

^{_____________}

Total

$101,000

Accordingly, the husband has net property and superannuation with a value of $3 022 746. But the husband will have to pay the wife the sum of $1 506 723. This would leave the husband with property and superannuation with a value of $1 516 023 ($3 022 746 - $1 506 723 = $1 516 023).
The husband indicated that Dr Yavuz would assist him to arrange the funds for the required payment to the wife in accordance with the Court’s determination.
In the event that the husband did not pay the wife as required, it would become necessary for properties to be sold and sufficient of the net proceeds paid to the wife to satisfy the order. This would leave the property industry business intact with its income stream so that the order would not affect his earning capacity. Clearly the husband would have a reduced property portfolio. As indicated above, the husband said that the rent from the investment properties and the outgoings were about even so on this basis his income should not be affected. There was no suggestion that the B property would not continue to be available to accommodate the husband and the children.
It was submitted on behalf of the husband that if a sale of properties was required by the order the Court would have to consider capital gains tax.
Firstly, there was no evidence that properties would have to be sold. The husband indicated that Dr Yavuz would raise the funds necessary to pay to the wife. In any event, there was no evidence before the Court about whether capital gains tax would be applicable and, if so, what the quantum might be.
On the other hand, the wife would be in receipt of funds with which she could purchase a home for herself and probably have funds either to invest or put towards her cost of living.
In my view, the orders I propose will in all the circumstances achieve a just and equitable order.

The wife’s costs

At approximately 12.35 pm on the first day (8 April 2013) of the hearing the wife was ready to enter the witness stand and be cross-examined. The solicitor for the husband informed the Court that his barrister would not be present that day and the solicitor was not in a position to cross-examine the wife. Initially the solicitor indicated that he could use some of the time to open his case. I indicated that this would be unlikely to consume much of the available time and presumably someone would have to pay the wife’s costs thrown away because the husband was not ready to proceed.
Apparently his barrister was delayed overseas and the husband would be severely prejudiced if the matter was forced on. Solicitor for the husband indicated “we’re happy to pay for half the costs of today” and have the matter adjourned to the following morning.
I indicated that on the basis that the husband was prepared to pay the wife’s costs for a half day, I would adjourn the hearing in accordance with the husband’s application.
Order that the wife’s costs be reserved noting husband has undertaken to pay one half of the wife’s costs of the first day on a solicitor client basis.
Mr Maghami informed the Court that the wife’s costs application was not opposed.
In written submissions on behalf of the wife the Court was informed that Dr Yavuz had agreed to pay $970 costs to the wife.
Those submissions were also to the effect that the husband had declined to pay the wife’s costs thrown away on the first day of the hearing. One half of the first day’s costs of the wife was estimated by her solicitor to be $3380 for both counsel and solicitor.
There can be no question that the husband’s application for an adjournment on the first day was granted on the basis that the Court was informed at the time that the husband would pay one half of the first day’s costs of the wife.
In my view the estimates of such costs on behalf of the wife are reasonable. In my view this is a matter where it is just to make a costs order pursuant to s 117(2) of the Act. I am well aware of the parties’ financial circumstances. The order is made on the basis of the husband’s conduct and failure to be ready to cross-examine the wife causing the adjournment in circumstances where the wife was ready to proceed.

I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 23 December 2013.

Associate:

Date: 23 December 2013

[2013] FamCA 1038

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Injunction

Remedies

Procedural Fairness

Res Judicata

Husband’s Property	$
1. WN property	550,000
2. Furniture, furnishings and household contents	20,000
3. Shares in NWR and GLM	16,750
4. Superannuation	12,200
5. Yavuz Family Trust	35,000
^{_____________}
$633,950

Property owned by husband in partnership with his brother	$
1. T Property	480,000
2. First P Property	950,000
3. First Sydney Property	2,200,000
4. First N Property	575,000
5. Second Sydney Property	3,150,000
6. Second N Property	240,000
7. Third N Property	240,000
8. Fourth N Property	240,000
9. Fifth N Property	850,000
10. Second P Property	400,000
11. MT Property	780,000
^{_____________}
Total	$10,105,000
Less ANZ Bank loans	$6,285,407
^{_____________}
Total	$3,819,593
Husband’s 50 percent interest	$1,909,796

TT Pty Limited	$
1. F Business	600,000
2. Third P Property	860,000
3. Sixth N Property	700,000
^{_____________}
Total	$2,160,000
Less ANZ Bank loans	$1,350,000
^{_____________}
Total	$810,000
Husband’s 50 percent interest	$405,000

HH Pty Limited (Trustee of the Yavuz Family Trust)	$
1. Unit 6, MW Property	350,000
Husband’s 50 percent interest	$175,000

$
Husband’s solely owned property	633,950
Husband’s 50 percent interest of property owned in partnership with his brother	1,909,796
Husband’s 50 percent interest in property owned by TT Pty Limited	405,000
Husband’s 50 percent interest in property owned by HH Pty Limited	175,000
^{_____________}
Total	3,123,746

$
1. 2003 Ford motor vehicle registered number …	5,000
2. Australian Super	4,300
^{_____________}
$9,300

$
1. Husband’s 50 percent liability for TT Pty Limited debt to the Australian Taxation Office	8,000
2. Husband’s debt to Mr I	93,000
^{_____________}
$101,000

$
1. 50 percent liability for TT Pty Limited debt to Australian Tax Office	8,000
2. Debt to Mr I	93,000
^{_____________}
Total	$101,000