Zammit and Zammit & Anor

[2020] FamCA 867

FAMILY COURT OF AUSTRALIA

ZAMMIT & ZAMMIT AND ANOR [2020] FamCA 867

FAMILY LAW – PROPERTY – Applications by husband and wife for alteration of property interests – cohabitation period of 10 years – where there were short periods of separation during the marriage – two children of the marriage – where Second Respondent seeks property orders on the basis of her claims in equity – Second Respondent asserted husband acted in breach of trust by utilising monies held on trust for the benefit of her and her husband – Second Respondent asserted husband acted in breach of his fiduciary duties in utilising monies in her account under a power of attorney – consideration of whether monies were gifted to the husband by his father and the Second Respondent – where the evidence does not establish a trust – where husband transferred his one half interest in property to the Second Respondent – where husband divested funds prior to final separation – assessment of contributions – husband made greater initial contributions – contributions by wife as homemaker and parent – wife remains as primary carer of the children – orders made.

Family Law Act 1975 (Cth) ss 75(2), 79

Barnell & Barnell (2020) FLC 93-961
Bell & Nahos [2016] FamCAFC 244
Black & Kellner (1992) FLC 92-28
Chang & Su (2002) FLC 93-118
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Gelley & Gelley (No.2) (1992) FLC 92-291
In the Marriage of Giunti (1986) FLC 91-759
In the Marriage of Weir (1993) FLC 92-338
Jabour & Jabour (2019) FLC 93-898
Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62
Mallett & Mallett (1984) 56 CLR 605
Re Helen Kaye Herdegen and Kenneth John Herdegen v Commissioner of Taxation (1988) 84 ALR 271
Stanford & Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Vass & Vass [2015] FamCAFC 51
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT: Mr Zammit

FIRST RESPONDENT: Ms Zammit

SECOND RESPONDENT: Ms B Zammit

FILE NUMBER: MLC 10480 of 2016

DATE DELIVERED: 16 October 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATES: 26, 27 & 28 May 2020

POST-HEARING WRITTEN SUBMISSIONS:

19 June 2020 by the Second Respondent;

10 July 2020 by the First Respondent;
31 July 2020 by the Applicant

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Arnold

SOLICITOR FOR THE APPLICANT: Collins House Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Puckey

SOLICITOR FOR THE FIRST RESPONDENT: Pearsons Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Dr Smith

SOLICITOR FOR THE SECOND RESPONDENT: DSA Law

Orders by the Court

1. Within 60 days of the date of these orders the Applicant husband (‘the husband’) shall sign all such documents and do all such things as required to transfer to the First Respondent wife (‘the wife’) at her expense all his right, title and interest in the property situate at and known as 2 E Street, Suburb F in the State of Victoria being the real property described in Certificate of Title Volume ... Folio … (‘the 2 E Street property’) and the wife indemnify the husband against all payments and liability pursuant to any mortgage registered against the 2 E Street property and all apportionable rates, taxes and outgoings of or with respect to the 2 E Street property of whatsoever nature and kind.

2. Within 60 days of the date of these orders the husband shall sign all such documents and do all such things as required to transfer to the wife at her expense all his right, title and interest in the property situate at and known as 1 E Street, Suburb F in the State of Victoria being the real property described in Certificate of Title Volume ... Folio ... (‘the 1 E Street property’) and the wife indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to the 1 E Street property of whatsoever nature and kind.

3. Within 60 days of the date of these orders the wife shall sign all such documents and do all such things as required to transfer to the husband at his expense all her right, title and interest in the property situate at and known as G Street, Suburb H in the State of Victoria being the real property described in Certificate of Title Volume ... Folio ... (‘the G Street property’) and the husband indemnify the wife against  all payments and liability pursuant to any mortgage registered against the G Street property and against all apportionable rates, taxes and outgoings of or with respect to the G Street property of whatsoever nature and kind.

4. Contemporaneously with the transfer of the G Street property to the husband in accordance with order 3 herein, the husband pay to the wife the sum of $193,431.08 (‘the payment’) with such payment to be made to the wife’s solicitors for payment out to the wife.

5. In the event that the payment has not been made pursuant to order 4 herein then the wife may elect to seek a transfer of the husband’s interest in the G Street property to her. Such election shall be in writing and within 7 days of the payment being due pursuant to these orders.

6. In the event the wife makes an election as provided for in order 5 herein then within 7 days of that election:-

   (a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the G Street property; and

   (b)the wife indemnify the husband against all payments, liabilities, and instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the G Street property; and

   (c)the wife have the sole right to occupy the G Street property. 

7. Contemporaneously with the transfer of the G Street property to the wife in accordance with order 6 herein, the wife pay to the husband the sum of $359,568.92 (‘the second payment’) with such payment to be made to the husband’s solicitors for payment out to the husband.

8. In the event that the wife makes no election as set out in order 5 herein or fails to make the second payment in accordance with order 7 herein then the husband and wife shall sign all documents and do all things necessary to forthwith place the G Street property on the market for sale altogether out of the Court (‘the G Street property sale’) and upon completion of the sale, the proceeds of the sale be applied as follows:- 

   (a)first, to pay all costs, commissions and expenses of the G Street property sale; 

   (b)second, to discharge the mortgage and any other encumbrance affecting the G Street property; and 

   (c)the balance to the parties in the following shares:- 

   (i)a payment to the wife to effect an overall 42 percent division of the assets of the parties as set out in the reasons published by the Court as to the making of these orders, such payment to be made to the wife’s solicitors for payment out to the wife; and 

   (ii)a payment to the husband to effect an overall 58 percent division of the assets of the parties as set out in the reasons published by the Court as to the making of these orders, such payment to be made to the husband’s solicitors for payment out to the husband.

9. The husband retain all his right, title and interest in the property situate in Country K.

10. Each party shall be solely entitled, to the exclusion of the other parties, to all other real estate, whether in Australia or overseas, in the name or possession of the party. 

11. If required, the parties shall do all acts and sign all documents to give effect to these orders. 

12. Each party shall be solely liable and/or indemnify the other parties against any liability encumbering any item of property to which that party becomes entitled to pursuant to these orders. 

13. Any joint tenancy of the parties in any real or personal property or estate is hereby expressly severed.

14. The wife shall be entitled to hold the children’s passports and birth certificates, together with all funds and documents held presently together at the property situate at and known as J Street, Suburb F in the State of Victoria (‘the J Street property’) as well as the two EUR500 notes which have been held for X and Y and that the husband will facilitate the provision of same at his earliest convenience.

Orders by Consent

1. The husband shall have sole right to the exclusion of the wife to the funds formerly held in his Commonwealth Bank Account Australian dollar savings account wheresoever the said funds are presently located and in the event any such funds continue to exist.

2. The wife shall have no claim to the J Street property held in the name of the Second Respondent.

3. The husband retain the Motor Vehicle 1.

4. The husband retain the work truck.

5. The husband retain the Motor Vehicle 2.

6. The husband retain all rights to the business known as P Company and all assets of the said business.

7. The husband indemnify the wife for all past, present and future liabilities of P Company and the partnership known as ‘Zammit & Zammit’ trading as P Company.

8. The parties shall retain the superannuation entitlements held in their respective names and each party shall forgo any claim or claims he or she may have to any superannuation benefit earned by or belonging to any other party.

9. The parties shall be solely entitled to the exclusion of the other to all personal property including but not limited to choses-in-action in the name or possession of the party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10480 of 2016

Mr Zammit

Applicant

And

Ms Zammit

First Respondent

And

Ms B Zammit

Second Respondent

REASONS FOR JUDGMENT

Preliminary  

1. Before the Court remained competing final property order applications made by each of the Applicant husband (‘the husband’), the First Respondent wife (‘the wife’) and the Second Respondent mother of the husband (‘the Second Respondent’). The proceeding commenced in the Federal Circuit Court of Australia (‘the FCC’) on 27 October 2016. It was transferred to this Court on 5 September 2017. By order of the Court made on 8 November 2017 the Second Respondent was joined as a party to the proceeding on her Application in a Case filed 4 October 2017. Each of the husband and wife seek that there be an alteration of their legal and equitable interests in property and submit that the Court should be satisfied that in all the circumstances of this case it is just and equitable to make orders which have that effect.[1] The Second Respondent seeks property orders on the basis of her claims in equity as set out in paragraph 25 of these reasons.

   [1]Family Law Act 1975 (Cth) s 79(2).

2. By order made by Her Honour Justice Bennett on 24 August 2018, the proceeding was bifurcated such that the parenting orders proceeding continued before Her Honour. The further hearing of the property orders proceeding was adjourned to be heard by another Judge.

3. Final parenting orders were made by Her Honour Justice Bennett on 19 August 2020. Those orders pertain to the children of the husband and wife namely X who is 12 years of age and Y who is 8 years of age (collectively ‘the children’). Essentially the final orders provide for the parents to have equal shared parental responsibility of the children; for the children to live with the wife; and for the children to spend substantial and significant time with the husband including alternate weekends from Thursday after school until the commencement of school on Tuesday together with half of the school holidays and other special occasions.[2] That is, they shall spend 9 nights out of 14 in the wife’s care during school terms and 5 nights out of 14 in the husband’s care. Following separation in March 2016, the children had lived with the wife and spent little and, after September 2017, no time with the husband. In March 2019, the husband and wife entered into consent orders whereby the children commenced to live with the husband, who was residing in the home of the Second Respondent, and spend time with the wife. That arrangement persisted until the making of the final parenting orders on 19 August 2020 when the children’s care was returned to that primarily of the wife.

   [2] Orders made 19 August 2020 by Bennett J, order 1 (by consent) and orders 2 to 5.

4. It is not necessary in these reasons for judgment to comment upon the entirety of the evidence of each witness nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[3]

   [3]Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].

5. Statements of fact in these reasons are findings of fact on the balance of probabilities.

Material Relied upon  

1. The husband relied upon the following material:- 

   a)a Further Amended Initiating Application filed 28 April 2020; 

   b)a Financial Statement sworn by him on 28 April 2020; 

   c)affidavits sworn by him on 28 April 2020 and 22 May 2020; 

   d)an outline of case filed 25 May 2020;

   e)a document entitled ‘Alternative orders sought by Husband filed in accordance orders made 28 May 2020’ filed 19 June 2020; and 

   f)his written submissions filed 31 July 2020. 

2. The wife relied upon the following material:- 

   a)a Further Amended Response to Initiating Application filed 15 May 2020; 

   b)a Financial Statement sworn by her on 14 May 2020; 

   c)an affidavit sworn by her on 14 May 2020 and exhibits to that affidavit which were sent to the Court on 25 May 2020;

   d)an outline of case filed 22 May 2020;  and 

   e)her written submissions filed 10 July 2020. 

3. The Second Respondent relied upon the following material:- 

   a)an Amended Statement of Claim filed 9 May 2018; 

   b)a Response to Initiating Application filed 22 May 2020; 

   c)affidavits sworn by her on 25 September 2017 and 21 May 2020;

   d)an affidavit of Ms Q sworn or affirmed 21 May 2020;

   e)an outline of case document filed 25 May 2020;  and 

   f)her written submissions filed 19 June 2020.

4. Each of the parties and Ms Q were cross-examined as to their affidavit evidence and other relevant matters. The Second Respondent required the assistance of an interpreter in the Country R language.

5. The husband’s evidence at trial was that where the Second Respondent’s evidence was inconsistent with that given by him in his affidavit evidence, then to the extent of that inconsistency he denied that which was asserted by the Second Respondent. Likewise, where the evidence of his sister, Ms Q, was inconsistent with that given by him in his affidavit evidence, then to the extent of that inconsistency he denied that which was asserted by Ms Q.

Background   

1. The husband was born in 1973 in Australia. He is now aged 47 years. The husband operates a business known as P Company (formerly P Business). He previously operated his business in partnership with the wife. He is a sole trader working as a tradesman.[4] 

   [4] Affidavit of Mr Zammit sworn 28 April 2020, [16].

2. The wife was born in 1974 in Country R.  She is now aged 45 years.[5]  The wife is engaged in home duties having ceased paid employment in 2008 prior to the birth of the husband and wife’s first child.[6] She is the primary carer of the children.[7]

   [5] Affidavit of Ms Zammit 14 May 2020, [5]. 

   [6] Written Submissions filed by the First Respondent wife on 10 July 2020, [16]. 

   [7] Written Submissions filed by the First Respondent wife on 10 July 2020, [16]. 

3. The Second Respondent was born in 1949 in Country K and is now aged 71 years.[8] In 1970, she and her now deceased husband Mr S emigrated to Australia.[9] They became Australian citizens in 1979. Mr S died in 2012. The Second Respondent is retired and her evidence was that she receives income from “rent, savings and superannuation.”[10]

   [8] Affidavit of Ms B Zammit sworn 21 May 2020, [3].

   [9] Affidavit of Ms B Zammit sworn 21 May 2020, [5].

   [10] Affidavit of Ms B Zammit sworn 21 May 2020, [3]. 

4. The husband and wife commenced their relationship in Melbourne in 2004. The wife was at that time living in Country T, but holidaying in Melbourne. She returned to Country T after her six week holiday to continue working and living there. In total the wife spent approximately three years in Country T.[11] In February 2006, the wife relocated to Australia and commenced to cohabitate with the husband. The husband and wife participated in a ceremony in that month.[12] In 2006, they married in a civil ceremony. X was born in 2008 and Y was born in 2011.[13] The husband and wife separated on occasion during their marriage as described hereafter. They ultimately separated on a final basis on 1 March 2016.[14] Their period of cohabitation and marriage was of approximately 10 years duration.

   [11] Affidavit of Ms Zammit sworn 14 May 2020, [5]. 

   [12] Affidavit of Ms Zammit sworn 14 May 2020, [7]. 

   [13] Affidavit of Ms Zammit sworn 14 May 2020, [8]. 

   [14] Affidavit of Mr Zammit sworn 28 April 2020, [24]; Affidavit of Ms Zammit sworn 14 May 2020, [12].

5. When the husband and wife commenced to live together in 2006, they also lived with the Second Respondent and Mr S at the property situate at and known as J Street, Suburb F in the State of Victoria (‘the J Street property’).[15] This property was the family home of the husband, Second Respondent and Mr S.

   [15] Affidavit of Ms Zammit sworn 14 May 2020, [15]. 

6. In or around mid-2008, the husband and wife purchased as joint proprietors a real property situate at and known as 1 E Street, Suburb F in the State of Victoria (‘the 1 E Street property’). The purchase of the 1 E Street property was funded entirely from monies borrowed by the husband and wife, totalling about $427,000.[16] They used the husband’s parents’ property situate at and known as U Street, Suburb V in the State of Victoria (‘the U Street property’) as security for their 100 percent of the purchase price borrowings.[17] The 1 E Street property did not become the matrimonial home of the husband and wife at that time. Instead, the husband and wife remained living in the home of the husband and his parents until 2012, an approximately six year period. In that period and between late 2010 and January 2012, the husband and wife subdivided the 1 E Street property into two separate titles in their joint names and built two units on the land.[18] Upon completion of the development works in or around January 2012, the husband and wife moved into one unit, and commenced to rent out the other.[19] The property in which they lived became known as 2 E Street, Suburb F in the State of Victoria (‘the 2 E Street property’).

   [16] Transcript of proceeding dated 26 May 2020, page 19, lines 25-30.

   [17] Affidavit of Ms B Zammit sworn 21 May 2020, [20]. 

   [18] Transcript of proceeding dated 26 May 2020, page 20, lines 5-10. 

   [19] Transcript of proceeding dated 26 May 2020, page 20, line 15. 

7. During the period of cohabitation, the wife was initially employed in a full-time capacity and for less than two years. She ceased such employment shortly prior to the birth of X. Thereafter, the wife was engaged in home duties and was the primary carer of the children. She assisted the husband with the book keeping aspects of his business. The husband was engaged throughout the period of cohabitation in the operation of his business which provided the sole income support for the family after the wife’s cessation of her employment.

1. The parties separated for short periods of time during cohabitation. These separations occurred in:-

   a)2009 when the wife went to Country R for a few weeks. This separation was occasioned by the husband allegedly physically assaulting the wife;

   b)2012 for a period of seven months commencing in October[20] when the parties resided under the one roof albeit that the husband would often spend time at the home owned by he and the Second Respondent. During this period the husband transferred his interest in the J Street property (as discussed hereafter) to the Second Respondent. The husband also sought to transfer to the Second Respondent properties owned by the husband and wife being property situate at and known as G Street, Suburb H in the State of Victoria (‘the G Street property’) and the 1 E Street property, the latter property being unencumbered.[21]  The wife for her part sought legal advice as to a property settlement between she and the husband and provided instructions for her lawyers to write to the husband in April 2013 in respect of property matters; and

   c)2014 again under the one roof during which time the husband restricted the wife’s access to funds and again spent considerable periods of time at the J Street property with the Second Respondent.[22] The wife applied for Centrelink support which she received for a short time before the husband and wife again reconciled.[23]

   [20] Affidavit of Ms Zammit sworn 14 May 2020, [123(a)(iv)]. 

   [21] Affidavit of Mr Zammit sworn 28 April 2020, [48A].

   [22] Affidavit of Ms Zammit sworn 14 May 2020, [28].

   [23] Affidavit of Ms Zammit sworn 14 May 2020, [29]-[31].

2. Since separation in March 2016, the husband has resided with the Second Respondent in the J Street property (save for as described in paragraph 20 hereafter),[24] whilst the wife has resided at the 2 E Street property. This property is encumbered by way of mortgage.[25] The mortgage and utilities are met by the application of the rental receipts received by the husband in respect of the husband and wife’s ownership of the 1 E Street property. The evidence of the husband and wife is that no income or profit is associated with the ownership of the 1 E Street and 2 E Street properties.[26] The children reside with the wife at the 2 E Street property.  

   [24] Affidavit of Ms B Zammit sworn 21 May 2020, [11]. 

   [25] Transcript of proceeding dated 26 May 2020, page 20 at lines 20-25.

   [26] Transcript of proceeding dated 26 May 2020, page 20 at lines 40-45. 

3. In about June or July of 2016, being some three months after separation, the husband moved from the J Street property to the 2 E Street property having given the tenants who occupied that property notice to vacate. The husband’s evidence was that he did not wish to stay in the home of the Second Respondent and that the 1 E Street property was property of the husband and wife. The wife felt “harassed, threatened and intimidated”[27] by the husband moving in next door and made an application for an intervention order on 14 July 2016. She obtained an interim order on that day with a final order being made on 23 November 2016. Part of the intervention order required the husband to cease his occupation of the 1 E Street property. The husband breached the intervention order made on several occasions by attending at the 1 E Street property and sending abusive text messages to the wife. He was charged and fined $1,000.[28] Following the husband ceasing to reside in the 1 E Street property, the property remained empty for a period of six to eight months. The husband would not allow the wife to lease the property. As a consequence the mortgage on the 2 E Street property as occupied by the wife and children was not paid during that period. On 19 December 2016, orders were made, by consent, requiring the husband and wife together to do all things necessary to place tenants in the 1 E Street property. [29]  In fact the husband unilaterally secured a new tenant for the purposes of having the rental receipts deposited directly into the husband’s bank account. The wife informed the real estate agent handling the tenancy that the rental money received should go directly to the mortgage account which thereafter occurred.[30]

   [27] Affidavit of Ms Zammit sworn 14 May 2020, [35].

   [28] Affidavit of Ms Zammit sworn 14 May 2020, [36].

   [29] Orders made 19 December 2016 by Judge Jones, Exhibit A, order 11 (by consent). 

   [30] Affidavit of Ms Zammit sworn 14 May 2020, [42].

Orders sought by the parties  

1. At trial, the final property orders sought by the husband, which were in contention, were as follows:-[31]

   1.  That the property situated at 2 E Street, Suburb F, in the State of Victoria be sold and the net sale proceeds be distributed 70% to the Applicant and 30% to the First Respondent.

   2. That the property situated at 1 E Street, Suburb F, in the State of Victoria be transferred to the Second Respondent.

   3. That the property situated at G Street, Suburb H, in the State of Victoria be transferred to the Second Respondent.

   4. That the Applicant indemnify the First Respondent in respect of any mortgage regarding G Street, Suburb H.

   5. That the First Respondent shall disclaim any and all interest she may be claiming in respect of any assets held by, registered in the names of, and/or owned by any of the Applicant, the Second Respondent, the Applicant's sister or the Applicant's sister's family.

   6. That the First Respondent shall disclaim any interest in any overseas real estate held for or owned by the Applicant.

   7. That the Applicant disclaim any interest in any overseas real estate held for or owned by the First Respondent.

   [31] Case Outline of the husband filed on 25 May 2020. 

2. Pursuant to the orders of the Court made on 28 May 2020, the husband was required to file an updated minute of the orders which he sought the Court to make should an adverse ruling be made regarding the Second Respondent’s trust and fiduciary duty claims as against him. The husband did so on 19 June 2020. The alternative orders sought by the husband (of which orders two to four are the subject of dispute in this proceeding and one[32] and five to nine are, in essence, orders agreed to by the husband and wife and in part by the Second Respondent[33] who, on her material, otherwise did not oppose one, six, seven and nine)[34] were as follows:- [35]

   [32] Case Outline of the wife filed 22 May 2020, page 7 at order 9(a). 

   [33] Case Outline of the wife filed 22 May 2020, page 6 and page 7. 

   [34] Response of the Second Respondent filed 22 May 2020, page 2. 

   [35] Document entitled ‘Alternative orders sought by the Husband in accordance with orders made 28 May 2020’ filed 19 June 2020. 

   1. That the Applicant Husband transfer all of his right title and interest in the property situated at 2 E Street, Suburb F in the State of Victoria to the Wife and the Wife be solely responsible for the mortgage. 

   2. That the Wife transfer all of her right title and interest in the property situated at 1 E Street, Suburb F in the State of Victoria to the Husband. 

   3. That the Wife transfer all of her right title and interest in the property situated at G Street, Suburb H in the State of Victoria to the Husband and the Husband be solely responsible for the mortgage. 

   4. That each party shall be solely entitled, to the exclusion of the other parties, to all other real estate, whether in Australia or overseas, in the name or possession of the party. 

   5. That each party shall be solely entitled, to the exclusion of the other parties, to all personal property (including choses-in-action) in the name or possession of the other party.

   6. That each party forego any claim or claims he or she may have to any superannuation benefits belonging to or earned by the other parties.

   7. That, if required, the parties shall do all acts and sign all documents to give effect to the orders contemplated by these orders. 

   8. That each party shall be solely liable and/or indemnify the other parties against any liability encumbering any item of property to which that party becomes entitled to pursuant to these orders. 

   9. That any joint tenancy of the parties in any real or personal property or estate is hereby expressly severed. 

   The alternative orders sought by the husband as set out above provide an overwhelming percentage adjustment in the husband’s favour which is incapable of being supported on the evidence and incapable of resulting in orders which are just and equitable for the reasons which follow.

3. At the commencement of the trial, the final property orders sought by the wife as differing from the orders sought by the husband and/or the Second Respondent were as follows:-[36]

   [36] Outline of case document filed by the wife on 22 May 2020. 

   1.That the Husband retain all his right, title and interest in the property situate in Country K;

   2.That the Husband shall have sole right to the exclusion of the Wife to the funds formerly held in his Commonwealth Bank Account Australian dollar savings account wheresoever the said funds are presently located.

   …

   9.That within 90 days the Husband shall sign all such documents and do all such things as required to transfer to the Wife at her expense and free of debt all his right title and interest in the following properties:

   (a)1 E Street, Suburb F, Certificate of Title Volume ... Folio ... (1 E Street);

   (b)2 E Street, Suburb F, certificate of Title Volume ... Folio ... (2 E Street); and

   (c)G Street, Suburb H, certificate of title Volume ... Folio ... (G Street).

   10. That within 90 days the Husband shall do all things required to discharge the mortgages encumbering the following properties:

   (a) 1 E Street, Suburb F ( Mortgage Registered No: ...);

   (b) 2 E Street, Suburb F (CBA Mortgage Registered No: ...); and

   (c) G Street, Suburb H (CBA Mortgage Registered No: ...).

   …

   13.That the wife shall be entitled to hold the children’s passports and birth certificates, together with all funds and documents held presently together at J Street, as well as the two 500 Euro notes which have been held for X and Y and that the husband will facilitate the provision of same at his earliest convenience.

4. During the course of the trial, counsel for the wife indicated that the wife no longer sought order 10 above and did not seek a transfer of the properties as set out in order 9 above as unencumbered properties. Rather the wife indicated that she would take such properties subject to the then existing mortgage encumbrances. No further clarification of the order sought was made. The Court will make an order requiring the wife to indemnify the husband in respect of those various encumbrances over the properties the subject of any order that is made.

5. The Second Respondent asserted two claims in equity, which she submitted, broadly, were:-[37]

   1.That the husband acted in breach of trust in utilising monies held on trust for the benefit of her and her husband; and

   2.That the husband acted in breach of his fiduciary duties in utilising under a power of attorney monies in her account.

   [37] Written submissions filed by the Second Respondent of 19 June 2020, [1]. 

6. The final property orders sought by the Second Respondent were as follows:-[38]

   [38] Outline of case document filed by the Second Respondent on 25 May 2020. 

   1.That the husband and wife do all acts and things and sign all documents to transfer to the second respondent their interest in the property situate at 1 E Street, Suburb F.

   2.That the husband and wife relinquish any claim to 1 E Street, Suburb F.

   3.That the husband and wife do all acts and things and sign all documents to transfer to the second respondent their interest in the property situate at G Street, Suburb H.

   4.That the husband and wife relinquish any claim to G Street, Suburb H.

   5.That the husband and wife do all acts and things and sign all documents to transfer to the second respondent their interest in the property in Country K.

   6.That the husband and wife relinquish any claim to the property in Country K.

   7.That the husband and wife relinquish any purported claim to the property situate at J Street, Suburb F and the second respondent be entitled to exclusive title to J Street, Suburb F.

   8.That the husband[39] pay to the second respondent the sum of 20,000 Euros.

   9.That the husband and wife pay such other sum as determined by this Honourable court to account for the husband’s breach of trust.

   10.That the husband and wife pay the second respondent’s costs of and incidental to her Response.

   The husband consented to the orders as sought by the Second Respondent in the event the Second Respondent’s claims succeeded.

   [39] Written submissions filed by the Second Respondent of 19 June 2020, [75]. 

7. The Court has determined that the claims of the Second Respondent fail for the reasons which follow. Accordingly, the Court’s consideration as to the remaining competing orders of the husband and wife is a consideration of those orders as sought by the husband in the alternative and as set out in paragraph 22 above. Nothing in the failure of the Second Respondent’s claims preclude an order being made by the Court which ensures the Second Respondent’s ongoing sole registered proprietorship of the J Street property.

Assets and Liabilities of the Husband and Wife  

1. The assets and liabilities of the husband and wife at trial were as follows:-[40]

   [40] Outline of case document filed by the wife on 22 May 2020, pages 5 and 6. 

REAL ESTATE
Property	Ownership	Value
G Street, Suburb H in the State of Victoria	Husband and Wife	Valuation    $640,000 Mortgage     $87,000 $553,000
1 E Street, Suburb F in the State of Victoria	Husband and Wife	Valuation    $780,000 Unencumbered $780,000
2 E Street, Suburb F in the State of Victoria	Husband and Wife	Valuation    $780,000 Mortgage   $389,271 $390,729
A holiday home and land in Country K purchased in 2014 paid from funds in the Euro account or related account/s[41] (not particularised further)	Husband	The husband and the wife both gave evidence that this property was funded by an amount which is contained within the total transactions in the table below entitled ‘Funds Transferred from the Husband to the Second Respondent’[42]
J Street, Suburb F in the State of Victoria	Husband	Valuation $1,020,000 $510,000 Husband’s one half interest notionally added back with the value of that half share being agreed between the parties
SUB TOTAL		E$2,233,729

[41] Transcript of proceeding dated 28 May 2020, page 222 at lines 30 to 35; Affidavit of Ms Zammit sworn 14 May 2020, [35] and [110].

[42] Transcript of proceeding dated 26 May 2020, page 42 at line 10. 

Notation in relation to the above table:-

A.The husband held a one third interest in the J Street property between 1995 and June 2012. The husband then held by virtue of the law of survivorship a one half interest in that property until November 2012 when he transferred his legal interest in fee simple to the Second Respondent. Thus from 29 November 2012 the husband has had no legal ownership of the J Street property. It remains the property of the Second Respondent.

NON-REAL ESTATE
Property	Ownership	Value
Truck as the entire value of P Company ABN …[43]	Husband	$10,000
Motor Vehicle 1	Husband	$5,000
Motor Vehicle 2	Husband	Net equity $8,264
Motor Vehicle 3	Wife	Value  $15,000 Loan encumbrance $15,388 Nil
SUB TOTAL		E$23,264

[43] Affidavit of Mr Zammit sworn 28 April 2020, [53]. 

SUPERANNUATION
Property	Ownership	Value
Superannuation	Husband	$10,203
Superannuation	Wife	$1,963
SUB TOTAL		E$12,166

FUNDS TRANSFERRED FROM THE HUSBAND TO THE SECOND RESPONDENT
Property	Ownership	Value
(i)   €284,236 (approximately $342,555) transferred on 12 November 2012; (ii)    $50,000 transferred on 9 December 2012 and 12 December 2012;[44] (iii)  $588,000 transferred between 3 to 12 March 2013; (iv)  €2,000 (approximately $2,960) transferred on 12 March 2013	Total $983,515
SUB TOTAL		E$983,515 (notionally added back to the assets available)

[44] Affidavit of Ms Zammit sworn 14 May 2020, Annexure ‘M’ at page 90.

TOTAL (inclusive of superannuation) E$3,252,674

Further notations in relation to the above tables:-

B.The husband has a current debt owing to the Australian Taxation Office in the sum of $4,812. That is a debt incurred by him in respect of post separation income and a debt which the parties agree shall not form part of the assets and liabilities for consideration.

C.Each of the husband and wife have personal debt, the husband’s being credit card debt in the sum of $46,402 and the wife’s being a personal loan debt of approximately $70,000. The parties also agree that these matters should be disregarded in the calculations above albeit the Court notes generally that the wife has incurred greater debt post separation by virtue of her lesser income and earning capacity.

Contribution at commencement of cohabitation

1. In 2006, the wife claimed to have a cash sum of €45,000 being approximately $75,000 which she had earned whilst working in Country T.[45] She confirmed in oral evidence she had €45,000 in total and that €22,000 of that total was in a bank account.[46] Her oral evidence was further that she sent “€5000, or €5500”[47] to the husband. The wife’s evidence was that although she had asked for statements “many times”, and letters were being sent to her,[48] she did not have any evidence to put before the Court in order to make out her claim. On the tendered evidence before it, the Court finds the wife provided approximately $10,000 by way of initial contribution.  Additionally, the wife made a contribution in the payment of her airfare to Australia from her earnings in Country T.  She gave oral evidence that the airfares were paid for in full or partly from the total amount of €6,500[49] withdrawn from her W Bank account in 2006.[50]  

   [45] Affidavit of Ms Zammit sworn 14 May 2020, [50].

   [46] Transcript of proceeding dated 28 May 2020, page 178, line 25. 

   [47] Transcript of proceeding dated 28 May 2020, page 183, line 35. 

   [48] Transcript of proceeding dated 28 May 2020, page 178, lines 30 to 35. 

   [49] Exhibit ‘-4’ marked 28 May 2020, being the wife’s statements for EE Bank and W Bank, page 5. 

   [50] Transcript of proceeding dated 28 May 2020, page 182, lines 25-35.

2. In 2006, the husband had an interest in the J Street property. The relevant history relating to the J Street property is as follows:-

   a)the property was purchased in 1995 as a block of land by the Second Respondent and Mr S using their joint savings and a mortgage in favour of the Commonwealth Bank of Australia (‘CBA’). At the time of settlement of the purchase, the Second Respondent and Mr S registered the ownership of the property as a joint tenancy between each of them and the husband. The husband thus obtained a one third interest in the J Street property which was registered on the Certificate of Title. The husband made no financial contribution to the purchase of the property, including the mortgage repayments thereafter. The evidence of the husband was that the decision taken by the Second Respondent and Mr S to register his name on the Certificate of Title (the husband being aged 23 years at the time) was because his parents’ English language skills were poor.[51] The Second Respondent’s evidence supported that of the husband, and went further. That evidence was:-[52]

   [51] Transcript of proceeding dated 26 May 2020, page 14, line 45. 

   [52] Affidavit of Ms B Zammit filed 21 May 2020, [12].

   The decision to register Mr Zammit’s name on the title of J Street, Suburb F was not a gift. Mr Zammit did not contribute in any way financially to the property. The decision was made in circumstances where:

   12.1 Mr S and I did not feel that our use of the English language was at a standard where we could effectively engage in all commercial and/or legal matters regarding the administration and maintenance of the property and the build;

   12.2 We trusted Mr Zammit to assist us with any matters relating [to] the property;

   12.3 This was convenient in circumstances where Mr Zammit continued to reside with us; and

   12.4 Upon request Mr Zammit could easily provide us with clear title;

   b)in 1998, following the construction of a home on the land (fully funded by the Second Respondent and Mr S) the Second Respondent, Mr S, and the husband took up occupation of the home;

   c)in February 2006, the wife commenced to live in the property with the husband, the Second Respondent and Mr S;

   d)in mid-2012, the husband became entitled, by reason of survivorship, to an equal undivided half share of the property as joint tenant with the Second Respondent; and

   e)in October 2012, the husband signed a transfer of land transferring his interest in the property to the Second Respondent as described in paragraph 49 below.

Contributions during cohabitation

Mr S’s illness and the Euro account monies

1. In 1991, Mr S’s father died. Mr S inherited a block of land on the coast in Country K. That inheritance was considered by Mr S and the Second Respondent as their joint property.

2. In 2005, Mr S was diagnosed with a medical condition. The Second Respondent, the husband and, from 2006, the wife were required to provide care to Mr S. A lot of that daily care fell to the wife as the Second Respondent and husband were engaged in full-time employment (the Second Respondent until December 2011 and the husband until June 2012).

3. In March 2007, Mr S and the Second Respondent travelled to Country K and sold a part of the inherited land. The balance of that land remains as inherited by the Second Respondent. Mr S received net sale proceeds in the sum of €1,379,886. Mr S determined to place nearly all of these funds in an account in the husband’s sole name and under his sole control. He opened a Euro account for that purpose and in September 2007, Mr S advanced €1,392,579[53] (approximately $2,309,418)[54]  (‘the Euro account monies’) to the husband via the CBA Euro Account ending #...39 (‘the Euro account’).[55] The evidence of the Second Respondent was that this was a practical decision, in part, because the husband often managed his parents’ financial affairs. Further, the Second Respondent’s evidence was that it was not the intention of the Second Respondent and Mr S to gift to the husband the Euro account monies, in particular because such a gift would have been unfair to their daughter, Ms Q. The Second Respondent described her and Mr S’s culture and practice to treat their children equally.

   [53] Transcript of proceeding dated 26 May 2020, page 18, line 25; Affidavit of Ms Zammit sworn 14 May 2020 Annexure ‘C’ at page 43.

   [54] On a sum of €1,392,579 at an exchange rate of 0.6030 (being the average exchange rate between 1 September 2007 and 16 September 2007 according to the Reserve Bank of Australia (‘RBA’).

   [55] Affidavit of Ms Zammit sworn 14 May 2020, [5].

4. On 17 September 2007, the Second Respondent and Mr S asked the husband to transfer €150,000 of the Euro account monies to their daughter, Ms Q, in recognition of her having completed her university studies.[56] Ms Q’s evidence was that she expected such monies, her parent having indicated some years beforehand that upon the sale by them of the inherited land they would gift to her €150,000 in recognition of her having obtained a tertiary degree. The husband complied with such request and on 17 September 2007 €150,000 was withdrawn by the husband from his account and transferred to Ms Q. The Second Respondent and Mr S returned from Europe in 2007. The Euro account monies they had provided to the husband solely and without condition or the imposition of terms thereafter remained in the sole name and control of the husband for over five years. Those monies were applied by the husband and wife as they saw fit. As described hereafter, the husband and wife dealt with the monies by applying some of them to interest bearing accounts; some to the purchase and development of real property; and the balance to living and other expenses.

   [56] Affidavit of Ms B Zammit filed 21 May 2020, [19].

5. On 29 June 2009, $500,000 was withdrawn from the Euro account of the husband by agreement between the husband and wife and deposited on 3 July 2009 into an account with Z Investments ending in #...93 in order to receive a much higher interest return rate. The account was in the sole name of the husband.  A further sum of $500,000 was transferred from the husband’s Euro account to a term deposit account in the husband’s sole name with the CBA so as to earn interest on that sum.  Each of the investments were discussed with the Second Respondent and Mr S, the parties and Mr S being family residing in the same home. As the wife said in her evidence, together they all spoke of the husband and wife’s application of the monies given to them by Mr S and the Second Respondent, many times. Mr S facilitated the Z Investments deposit in the husband’s sole name, by indicating to the financial advisor upon whom he and the husband attended, the source of the funds.

6. Also around this time, and as a consequence of Mr S becoming increasingly ill, with an additional diagnosis of insulin dependent diabetes, the Second Respondent and Mr S executed a power of attorney with respect to all their financial decisions in favour of the husband. In 2009, the Second Respondent and Mr S both knew of the terminal nature of Mr S’s illness.

7. The Second Respondent gave evidence that as Mr S’s illness progressed she commenced to spend more time at home because she “…was looking after [her] husband, because his condition was getting worse.”[57] The Second Respondent worked throughout her marriage as a factory worker with Employer AA. She commenced “a couple of years after giving birth to [her] children”[58] being in or around 1975, and continued working in that capacity until ultimately retiring in 2011, following a period from “maybe 2010”,[59] on her oral evidence, in which she used the entirety of her accrued long service leave and sick leave. Her ultimate cessation of work coincided with her husband’s return from hospital, in late 2011, to live at home until his death some six months later in mid 2012. This return home was some 8 days before the husband, wife and children moved into their new home at the 2 E Street property. In the period prior to the Second Respondent’s cessation of her employment, and following the wife commencing to reside in the home in 2006, it was the wife who remained in the home during the day, performing home duties for the household and assisting Mr S.  The wife had a close and loving relationship with Mr S between 2006 and 2012, as in part evidenced by the extensive period of co-existing between the husband and wife and the Second Respondent and Mr S, including across the birth of the children. The Second Respondent and Mr S were generous in their support of the husband and wife’s family unit. The husband conceded at trial that the wife “liked [Mr S] as a person” and “she was there”.[60] The period in which the wife and husband lived with Mr S and the Second Respondent all followed Mr S’s diagnosis. Mr S had “various health complications”[61] throughout that period. Whilst the Second Respondent minimised the care provided to Mr S by the wife, and asserted the wife’s claims were exaggerated, she did concede that “from time to time, Ms Zammit did provide physical support to Mr S as he was unwell and needed care”.[62] Additionally, the wife spent considerable time in Mr S’s company. She often sat with him and talked to him. It is clear she had respect and affection for him. The Second Respondent was at her workplace and the husband was at his. After the husband and wife’s move from the home, the wife returned to it to continue to take Mr S to his twice weekly blood transfusion and other medical appointments and to provide to Mr S a cooked lunch from time to time. The husband was vehement in his denial of the provision of such assistance by the wife but the Court prefers the evidence of the wife as to this matter. This evidence did not however contradict the evidence of the husband and the Second Respondent that the Second Respondent had the primary role of caring for Mr S in his last six months of his life and did so with enormous care, devotion and diligence. The husband likewise cared for his father as he could. It is simply that the wife made this contribution over many years which the husband could not acknowledge.

   [57] Transcript of proceeding dated 27 May 2020, page 59, lines 25-30. 

   [58] Transcript of proceeding dated 27 May 2020, page 16 at lines 10-40. 

   [59] Transcript of proceeding dated 27 May 2020, page 59, lines 10-20. 

   [60] Transcript of the proceedings on 26 May 2020, page 28 lines 40-45.

   [61] Affidavit of Ms B Zammit filed 21 May 2020, [14].

   [62] Affidavit of Ms B Zammit filed 21 May 2020, [61].

8. During cohabitation the wife was otherwise engaged in home duties and the primary care of the children (from 2008 being the time of the first child’s birth). The husband was throughout the marriage engaged as a sole income earner for the family unit consisting of he, the wife and the children. The husband assisted in the care of the children when he could. He also provided assistance to his parents as and when he was able.

The 1 E Street property

1. In 2008, irrespective of the receipt by the husband of the Euro account monies in 2007, the husband and wife purchased the 1 E Street property as joint proprietors. The purchase price was $400,500 and the borrowings were in the sum of $427,000 being additional stamp duty and other costs. The U Street property used as security, and which remains in the ownership of the Second Respondent, was no longer required as security some two years after the husband and wife completed the purchase. The 1 E Street property was tenanted when the husband and wife purchased it. Those tenants remained in occupation for a period of approximately two years. The husband and wife determined to borrow funds at this time as a commercial decision.

2. In 2010, the husband and wife commenced to arrange for the subdivision of the 1 E Street property such that two Certificates of Title issued. In 2010, the husband withdrew the sum of €72,040 from the Euro account. In 2010, the husband withdrew a further sum of €142,840 from the Euro account.  This totalled €214,880 being approximately $311,150.[63] These monies were then applied by the husband and wife to their development project at the 1 E Street property. The husband and wife demolished the existing old home and completed the building of two units on the land and by early 2012 the entire subdivision and development was complete.

   [63] Exchange rate at 2010 was AUD$1= EUR 0.6906.

3. The husband and wife’s evidence was that the Second Respondent knew of the aforementioned withdrawals and their purpose. The Second Respondent’s evidence was that she was unaware of the withdrawal of, and application of, the funds. She nevertheless claimed that the husband and wife had told her and Mr S of their development idea, and had said to them that in respect of the two houses on the land, that the Second Respondent and Mr S “would have one of them”.[64] The Court accepts the evidence of the husband and wife that the Second Respondent was well aware of the withdrawal of the necessary funds by the husband to subdivide the land and build the two units on the 1 E Street property. That accorded with the way the husband and wife and the Second Respondent and Mr S lived, which included discussions between them about the husband and wife’s financial advancement in life. The Court finds also that contrary to the evidence of the husband, which was that, in 2012, the Second Respondent required the 1 E Street property to be transferred to her because of her advance of approximately $650,000 to fund the development,[65] that no such demand was made by the Second Respondent.

   [64] Affidavit of Ms B Zammit filed 21 May 2020, [24].

   [65] Affidavit of Mr Zammit sworn 28 April 2020, [47(b)].

4. On the husband’s evidence, additional to the approximately $311,150 of the Euro account monies applied as described in paragraph 40 above, was the application of the term deposit monies in his name of approximately $500,000 together with interest. That would have made a total application of some $811,000 or slightly more. The evidence of the husband and wife was that approximately $650,000 in total had been applied by them to the construction of the units and the costs of subdivision. The Court is mindful that the parties had a mortgage encumbrance in respect of the property at the time of purchase of approximately $427,000. There is no evidence before the Court as to whether any of the funds were applied to reduce that mortgage. The only evidence before the Court is that there is now in respect of the 2 E Street property a mortgage of $389,221 and that there is no mortgage encumbrance in respect of the 1 E Street property. The husband gave no real explanation as to how, perhaps a sum of approximately $160,000, was applied except to say that he no longer had such funds. The wife however described the Euro account monies as also being applied by the husband and wife in the payment of their living expenses. She described the lifestyle lived by the husband, wife and their children as a “nice comfortable life”.[66] The husband concurred in that view. It is not possible on the totality of the evidence and to the necessary standard of proof to find that the husband has retained these funds.

   [66] Transcript of proceeding dated 28 May 2020, page 200, line 40.

5. The husband, the wife and their children took up residence in the property which became known as the 2 E Street property and the husband and the wife otherwise tenanted the unit situate at the 1 E Street property. The rental receipts were applied by the husband and wife to repayment of the monthly mortgage monies in respect of the 2 E Street property.

The G Street Property

1. In late 2009 or early 2010, the husband and wife purchased the G Street property as joint proprietors. The purchase price was $365,000 together with its costs. The purchase was funded by a joint home loan from the CBA in the sum of approximately $150,000 (‘the CBA loan’) and by an advancement of funds from the Euro account in the husband’s sole name in the sum of approximately $248,000.[67] The husband withdrew from the Euro account the following:-

   a)in 2009 the sum of $30,000 for the deposit; and

   b)in 2009 the sum of $218,100 applied toward the purchase price.

   The wife’s affidavit evidence ascribed a value of $200,000 to the CBA loan.[68] The husband was cross-examined as to the wife’s affidavit evidence and gave evidence that the CBA loan was “approved for $200,000. I don’t know if we ended up getting 200, but yes, correct.”[69] The husband later said, with any reference to “we” meaning both the husband and the wife:-

   …we probably asked for about 200 or 250 from the bank for approved, but, at the end of the day, we only withdrew another, I will say it was 165 or whatever it was, or 150, to make the difference to purchase that property, so the rent can just pay that mortgage off.[70]

   The totality of the evidence, including the documentary evidence, supported the husband’s claim that the CBA loan was approximately $150,000.

   [67] Transcript of proceeding dated 26 May 2020, page 77, line 45; Affidavit of Mr Zammit sworn 28 April 2020, [51]. 

   [68] Affidavit of Ms Zammit sworn 14 May 2020, [91(a)]. 

   [69] Transcript of proceeding dated 26 May 2020, page 23, lines 30-35. 

   [70] Transcript of proceeding dated 26 May 2020, page 24, lines 5-10. 

2. The evidence of the Second Respondent was that she was unaware of the husband’s withdrawal of, and application of, the Euro account monies to fund the purchase of the G Street property. The husband’s oral evidence was that he did not have the consent of the Second Respondent or his father or both,[71] before applying funds from the Euro account. Of course the non-existence of consent does not mean that there was no knowledge. Further, the husband’s evidence that no consent was obtained by him from his parents, went to the nature of the advance of the Euro account monies, supporting the other evidence before the Court that such monies were a gift to the husband with the application of such monies being entirely at the discretion of the husband. Additionally, the Court does not accept the evidence of the Second Respondent as to her lack of knowledge, and prefers the evidence of the wife[72] and husband[73] that they actively discussed with the Second Respondent and Mr S their investment activities. The Second Respondent was well aware that the wife was engaged in home duties and in receipt of no income save the partnership income from the husband’s business. The Second Respondent was aware of the income receipts of the husband to the extent that such purchases and/or developments could not occur without application of the monies advanced to the husband by Mr S with no terms or conditions attached.

   [71] Transcript of proceeding dated 26 May 2020, page 77, lines 40-45. 

   [72] Transcript of proceedings dated 28 May 2020, page 221, lines 0 to 5. 

   [73] Affidavit of Mr Zammit sworn 28 April 2020, [51]; Transcript of proceeding dated 26 May 2020, page 24, lines 0 to 15. 

3. The G Street property has been tenanted since purchase with the outgoings in respect of the property being met by rental receipts. Those rental receipts remain monies received by the husband and the Second Respondent has never requested payment of such monies to her.  The Court accepts the evidence of the husband and wife that the rental receipts of approximately $1,300 per month have always been used to repay the home loan and additionally, whilst the parties were together, paid for the family’s living expenses in the sum of approximately $70 each week. Those monies have been used by the husband solely since separation.

Transfers by the husband during the marriage

The J Street property

1. Following Mr S’s death in 2012, and as a result of the marriage difficulties thereafter experienced by the husband and the wife, the Second Respondent wanted the “security and peace of mind”[74] of the sole ownership of the J Street F property. The husband described that the Second Respondent had:-[75]

   …come to understand that as the property was registered in her name and my name as joint proprietors, she could not bequeath her interest or any part of her interest to my sister. Neither my mother nor my father - and not even I - were aware of the rule of survivorship when my parents purchased the J Street property back in 1995.

   [74] Affidavit of Mr Zammit sworn 22 May 2020, [15(d)(i)].

   [75] Affidavit of Mr Zammit sworn 28 April 2020, [32(g)].

2. The interest held by Mr S in the J Street F property had been a one-third jointly held interest. The law of survivorship meant that the Second Respondent and the husband each gained a 50 percent interest in the property. Contrary to the husband’s evidence, it is likely that Mr S was aware his son and wife would share equally in the ownership of the property. His will was signed and executed in 2009 and it made no reference to the J Street property.[76] At that time, Mr S also knew his illness was terminal. These matters were also known to the Second Respondent.

   [76] Affidavit of Ms B Zammit sworn 25 September 2017, Annexure ‘-3’, pages 21 to 33.

3. Following Mr S’s death, and during the separation of the husband and wife commencing around October 2012, the husband commenced the process of a transfer to his mother of his one half interest in the J Street property together with the payment of stamp duty. The payment of stamp duty was necessary because the husband was transferring “all my estate in fee simple”.[77] The transfer was not one made as one “entitled in equity” and thus exempt from stamp duty. The Second Respondent is now the sole registered proprietor of the J Street property, the husband having signed the transfer of land on 19 October 2012 with the transfer of land being recorded by endorsement on 29 November 2012. The parties remained at this time separated under the one roof. The husband transferred his equal undivided half share interest in the real property to the Second Respondent for a consideration of $350,000 in relation to which he paid $16,070 in stamp duty costs. The Second Respondent did not pay to the husband the sum of $350,000 and nor was it ever intended between them that such payment would be made. The wife was informed by the husband of his actions and the removal from her reach of this property. The Second Respondent has remained the sole proprietor of the J Street property since 2012.

   [77] Affidavit of Ms Zammit sworn 14 May 2020, [123(a)] and Annexure ‘K’.

1. The husband admitted that he also attempted at around this time to persuade the wife to consent to the transfer of his and the wife’s interest in both the G Street property and the 1 E Street property, to the Second Respondent, but the wife refused. The husband asserted in his evidence that the conversation between he and the wife about such transfer occurred on 27 November 2012.

2. In February 2013, being after the completion of the transfer of the J Street property to the Second Respondent, the husband alleged he confided in the Second Respondent for the first time that “he was having marriage problems with Ms Zammit”.[78] He claimed a discussion then followed between the husband and the Second Respondent as to the wife refusing to sign documents to transfer the G Street property and the 1 E Street property to the Second Respondent.[79] Of course by this time the husband had completed his various transfers of the Euro account monies, from accounts in his name to account/s in the name of the Second Respondent. It is unlikely that the Second Respondent would have had no knowledge of these transfers. Likewise that the Second Respondent and the husband had not had an earlier discussion as to the husband’s approach to the wife to transfer real properties to the Second Respondent. On the totality of the evidence the Court finds this conversation between the husband and the Second Respondent as to the husband and wife’s marital difficulties and the actions proposed to be taken and/or by that time already taken by the husband, occurred at around the time of transfer of his one half interest in the J Street property to his mother and at around the time of the husband’s commencement to transfer funds from his name to that of the Second Respondent.   

   [78] Affidavit of Ms B Zammit filed 21 May 2020, [33].

   [79] Transcript of proceeding dated 26 May 2020, page 30, lines 40 to 45; Transcript of proceeding dated 28 May 2020, page 206, lines 25 to 35. 

3. In April 2013, the husband received a letter from a firm of solicitors acting for the wife which was dated 3 April 2013. That firm advised they were acting on behalf of the wife; that they were instructed the marriage had broken down; and as a consequence of the breakdown the wife wished to effect a property settlement with the husband. Subsequent to that correspondence the parties reconciled.

4. During the course of the husband’s ownership of the J Street property and whilst the husband and wife were living in the home, the husband applied some of the Euro account monies being approximately $55,933 on renovations to the J Street property. That $55,933 comprised of the application of $20,000 (of a total $50,000) withdrawn in 2009,[80] and the application of approximately $35,933 (from a total of approximately $254,033) withdrawn in 2010.[81] Those renovations were carried out whilst the husband and wife lived in the home and provided improved facilities to all of the occupants in the home. The tasks undertaken included:-[82] 

   a)rendering and repainting the outside of the property;

   b)construction of a veranda and alfresco area;

   c)purchase of new barbecue appliances and installation of a barbecue area;

   d)installation of new fences;

   e)purchase of new sitting room furniture; and

   f)purchase of art-work and decorative items.

   The application of the Euro account monies by the husband at this time was evidence supporting the nature of the husband’s interest in the J Street property. He had a one third joint ownership of that property which increased to a one half legal and beneficial ownership in 2012.

   [80] Affidavit of Ms B Zammit sworn 21 May 2020, [27.1.2]. 

   [81] Affidavit of Ms B Zammit sworn 21 May 2020, [27.2.2]. 

   [82] Affidavit of Ms Zammit sworn 14 May 2020, [64]. 

Further matters as to the Euro account and use of the Euro account monies

1. In the period of the husband and wife’s separation commencing in September or October 2012, the husband commenced to divest himself of assets. In addition to the transfer of the husband’s equal half-share interest in the J Street property, the husband also made the following transfers to the Second Respondent:-

   a)On 7 November 2012 he transferred the Z Investments funds then in his name[83] in the sum of approximately $592,801.27[84] into a personal account in his name. The husband confirmed upon being cross-examined, that in 2012, the Second Respondent opened a CBA NetBank Saver account and subsequently he transferred those Z Investment monies to that account.[85] The wife placed before the Court CBA statements for the NetBank Saver account in the name of the Second Respondent account number ending #...38.[86] This statement dated the account as opening in 2012, but dated the transfer of the Z Investment monies from the husband to the Second Respondent over the period of months in 2013, in six separate transactions all in the approximate value of $100,000, and being a total sum of $588,000.[87] Prior to that transfer, the husband had placed the monies into an account in his name with number ending #...86.[88] The husband’s oral evidence as to this was:-

   The financial adviser, the people handling that at the time, said I had to open up an account in my name and that the money had to go into my name, into my bank account, and then from my bank account I could transfer to my mother’s account.[89]

   b)in 2012, being five months after Mr S’s death, the husband transferred the balance of the CBA Euro account in the amount of €284,000 to the Second Respondent. [90] That was a sum of approximately $342,555;

   c)in 2012 he transferred $50,000 from his CBA Netbank account to the Second Respondent;[91]

   d)in 2013 he transferred $588,000 from his CBA Netbank account to the Second Respondent as referred to in subparagraph (a) above;[92] and

   e)in 2013 he transferred €2,000 (approximately $2,960) to the Second Respondent.

   (total being $983,515).

   [83] Written submissions filed by the Respondent wife of 10 July 2020, page 17.

   [84] Affidavit of Ms Zammit sworn 14 May 2020, [125] and [128].

   [85] Transcript of proceeding dated 26 May 2020, page 33, lines 25-30; Affidavit of Mr Zammit sworn 22 May 2020, [15(2)]. 

   [86] Affidavit of Ms Zammit sworn 14 May 2020, Annexure ‘M’ at pages 90 and 91. 

   [87] Affidavit of Ms Zammit sworn 14 May 2020, Annexure ‘M’ at pages 90 and 91. 

   [88] Affidavit of Ms Zammit sworn 14 May 2020, [125]. 

   [89] Affidavit of Ms B Zammit sworn 21 May 2020, [32.3].

   [90] Written submissions filed by the Respondent wife of 10 July 2020, page 17.

   [91] Written submissions filed by the Respondent wife of 10 July 2020, page 17.

   [92] Written submissions filed by the Respondent wife of 10 July 2020, page 17.

2. In the Second Respondent’s affidavit evidence the Second Respondent stated that additional to the above the husband had transferred to her, in 2012, his Australian Dollar Term Deposit Account in a sum unknown. The husband denied any such transfer and the wife considered such evidence of the Second Respondent supported a finding that the husband had at that time, still remaining available to him, the totality of his term deposit referred to in paragraphs 35 and 42 above in the sum of $500,000 together with any interest. The basis for the wife making such assertion was that neither the husband nor the Second Respondent had ever provided disclosure by way of documentary evidence as to the application of those term deposit funds.[93] The husband’s evidence was that he was not able to locate such documentary evidence given the intervening years that had passed. The wife argued that in circumstances where the husband and the Second Respondent had failed to meet their obligations of disclosure in relation to these transactions, it was open to the Court to draw the adverse inference that the husband probably had additional undisclosed assets and/or to err on the side of generosity to the wife in the exercise of its discretion afforded by s 79 of the Act.[94] The Court does not draw that adverse inference. The Court prefers the evidence of the husband and notes that the Second Respondent became confused as to this issue and her evidence became unreliable. Further, the evidence of the husband and wife was that they had applied $650,000 to the development of the 1 E Street property and further applied funds toward their living expenses in circumstances where the husband and wife’s partnership income was modest. Further, monies were spent by the husband and wife in improvement of the J Street property and the wife was additionally transferring funds to her family in Country R. There was clearly some trust as between the husband and wife in respect of their finances in that the husband was unaware of the quantum transferred by the wife to her family in Country R. But he was relatively relaxed about that aspect of the case in the proceeding. Obviously there are some funds unaccounted for but that is not surprising given the many years that have passed since 2007 and the length of the husband and wife’s relationship following that time. There is insufficient evidence to establish that the husband has undisclosed assets that should be allowed for.

   [93] Written submissions filed by the Respondent wife of 10 July 2020, page 17.

   [94] In the Marriage of Giunti (1986) FLC 91-759; Black & Kellner (1992) FLC 92-28; In the Marriage of Weir (1993) FLC 92-338; Chang & Su (2002) FLC 93-118.

3. In 2014, the husband and wife discussed the purchase of land at the BB Estate in Suburb CC. The Court accepts the wife’s evidence that the husband and wife discussed building a three storey home on that piece of land. The husband then proceeded to purchase the Suburb CC property in the name of the Second Respondent. The property was purchased using the monies earlier transferred by the husband to the Second Respondent in 2012 in the sum of €284,000 (approximately $340,000) as set out in paragraph 54 above.[95] The purchase price of the Suburb CC property was $280,000 with the Transfer of Land being dated 2014. The Suburb CC property was subsequently sold in 2016 (undeveloped) for the sum of $300,000 and the proceeds were retained by either the husband or the Second Respondent but under the control of the husband. Both those parties have refused to provide financial discovery as to the purchase and sale of this property despite repeated requests from the wife that they do so.

   [95] Affidavit of Ms B Zammit sworn 25 September 2017, [50]. 

4. Also in 2014 the family (comprising the husband, wife, their children and the Second Respondent) holidayed in Country K and purchased some land on which to build a holiday home. The purchase was in accordance with Mr S’s wishes. Mr S made clear to all the parties that he would like the husband and wife to build a home overseas so that his grandchildren, X and Y, would know where he came from. The expression of that wish is not contested by any of the parties.

5. The husband, wife and Second Respondent discussed the purchase of the Country K land and the Second Respondent’s nephew found suitable land for the husband and wife to purchase. The husband and wife also purchased an adjoining block of land. The Second Respondent’s nephew also arranged for a builder to build a holiday home on the property. Whilst the wife was visiting her family in Country R (a four hour drive away) the husband signed a contract to purchase the land as discussed by the parties. That property was and remains registered in the husband’s sole name.[96]

   [96] Transcript of proceeding dated 26 May 2020, page 43, lines 10 to 15; Affidavit of Mr Zammit sworn 28 April 2020, [33(f)]. 

6. Contrary to the evidence given by the Second Respondent, the Court finds the Second Respondent had complete knowledge of the purchase of the Country K land and adjoining block prior to the purchase being made, and also prior knowledge as to the proposal by the husband and wife to build the holiday home. The building of the holiday home was completed within one year. The husband had earlier transferred to an account the name of the Second Respondent a total sum of $983,515 by 2013. From these monies the husband arranged the transfer of monies to the Second Respondent’s nephew to pay for the purchase of the land, the adjoining block, and the construction costs of the home. The total monies transferred on the evidence of the Second Respondent were €157,000.[97] The wife’s affidavit evidence provided a total figure of €167,000 (approximately $258,234).[98] Annexed to the wife’s affidavit evidence were the international money transfer records from the CBA, however those records did not include the last two listed transactions. The wife explained the totality of the transfers as follows:-[99]

   [97] Written submissions of the Second Respondent filed 19 June 2020, [3.7]. 

   [98] According the RBA the conversion rate at 30 October 2015, being the mid-point between 2014 and 2016 was 0.6467.

   [99] Affidavit of Ms Zammit sworn 14 May 2020, [110], [111] and Annexure ‘G’.

   110.…

   Those funds were sent from two Euro accounts. Firstly, Euro Account #...18 totalling €39,000. Then in 2014 she closed Euro account #...18 and transferred the balance of €210,236 into a new account being a CBA Euro Account #...00. The Second Respondent has then transferred funds from that Euro Account #...14 of €128,000 to her nephew for that Country K build.

   111.     The funds were transferred to Mr S on the following dates:

   a.        From #...18:  

   i.         2014              €11,000

   ii.        2014              €15,000

   iii.      2014              €13,000

   b.        From #...14: 

   i.         2015              €20,000

   ii.        2015              €20,000

   iii.      2015              €20 ,000

   iv.       2015              €20,000

   v.        2016              €20,000

   vi.       2016              €6,000

   vii.     2016              €2,000

   TOTAL  €167,000

   The purchase was made in the sole name of the husband using the monies gifted to him by Mr S in 2007 being the monies he had subsequently transferred to the Second Respondent. There was no reason to place this property in the name of the husband save that it was intended by all for the husband to become the sole proprietor of the land. If, as the Second Respondent asserted, the land belonged to her there was no impediment to her, at that time to have the property purchased in her name. She was physically in the country and spoke the local language. Furthermore, the Second Respondent claimed by that time to have had no trust in the husband. That was simply not truthful evidence.

Transfers of the wife

1. The husband asserted that the wife had transferred in excess of $100,000 to her family overseas both during and subsequent to the marriage.[100] The wife agreed that during the marriage she transferred approximately $70,000 to her parents. Included in this sum were transfers from the wife to her family in Country R in 2015, being in the year prior to separation, totalling in excess of $21,500. The wife’s further evidence is that she transferred approximately $35,000 to her parents following separation. The husband agreed with that post separation transfer quantum and his evidence, which the Court accepts, is that most of those funds came from the parties’ joint accounts which he had continued to allow the wife access to for some period following separation.  Whilst none of the parties sought a notional add back to the quantification of the parties’ assets in this amount it is clear that these funds were income and/or capital of the parties which the wife determined to provide to her family in Country R to assist them in the purchase of real properties. Those properties are not being sought to be brought into account. These monies are nevertheless a contribution by the husband to the wife and her family in a not inconsiderable sum. 

   [100] Written submissions of the husband filed 31 July 2020, Part D paragraph 5.

2. Both the husband and wife were cross-examined as to a sum of approximately $350,000 together with interest that was said to be unaccounted for.[101]  The Court finds that money was accounted for in large part by virtue of a correct, rather than an incorrect, application of the appropriate exchange rate at differing times between the Euro and the Australian Dollar; by the application of funds for the J Street property renovations; by the husband and wife’s living expenses as conceded by the wife in cross-examination; in part, by the wife’s sending of funds to her parents; and otherwise for the reasons as set out elsewhere in this judgment.

   [101] Transcript of proceeding dated 26 May 2020 page 39, line 40 and dated 28 May 2020, page 213, lines 40 to 45. 

Conclusion as to Contribution

1. The wife’s contributions include her initial savings of very small amount transferred to Australia at the commencement of the marriage;[102] some income from her employment of less than two years prior to the birth of the children; her contributions as parent and homemaker; and her contributions to the acquisition, maintenance and improvements of the various real properties owned or partially owned by the parties or either of them. Those contributions were made over a ten year period of cohabitation and following separation the wife had the primary care of the children, and for some of the time, the sole care of the children before the children commenced to live with their father. She has since resumed the primary care of the children. The Court is mindful that it must give these contributions “substantial and not token” [103] weight in the holistic assessment of contributions, of all kinds,[104] by the husband and wife.[105] The husband’s contributions include equity in the J Street property at the commencement of the marriage; his income as a sole trader throughout the entirety of the marriage with that income providing the financial support necessary for the family and providing, together with the monies gifted to him in 2007, a contribution of monies to the wife’s family in Country R in the sum of $105,000; his contributions in the capacity of parent and homemaker at those times that his employment did not preclude him performing those tasks; and his contributions to the acquisition, maintenance and improvements of the various real properties owned or partially owned by the parties or either of them. Those contributions were made over a ten year period of cohabitation. The husband also had the primary care of the children for a period of approximately 18 months in 2019 and 2020. Significantly, the husband made direct financial contributions of his one half interest in the J Street property and in the application of monies gifted to him in 2007. The parties were able to enhance their lifestyle by application of those funds and more importantly establish a capital base available for division between them now which far exceeds that which they would have been able to establish without this significant capital injection of funds.

   [102] Affidavit of Ms Zammit sworn 14 May 2020, [50]-[53]; Exhibit ‘-4’.

   [103]Mallett & Mallett (1984) 56 CLR 605.

   [104]Barnell & Barnell (2020) FLC 93-961, [24].

   [105]Jabour & Jabour (2019) FLC 93-898, [21].

2. The Court finds that the contribution based entitlements of the husband and wife should be assessed in the proportions of 68 percent in the husband’s favour and 32 percent in the wife’s favour.

Evidence of the Second Respondent  

1. The Second Respondent joined the proceeding, which had been on foot for over 12 months, and made her claims as set out in her Statement of Claim at a time exceeding three years after the purchase by the husband of the Country K land in 2014, and more than five years after the Second Respondent, on her evidence, had discovered the dishonesty of the husband (her son) in his management of the Euro account monies claimed as belonging to the Second Respondent and Mr S. It was further a claim made some seven years after the husband and wife has subdivided and developed the 1 E Street property.

1. During the course of the trial, the evidence of the Second Respondent was firstly that the husband’s affidavit evidence was false; that the husband was evasive and made false statements to his mother to cover up his dishonest conduct in respect of his financial dealings with the Second Respondent and Mr S; and that the evidence given by the husband, her son, in the witness box at trial was also false.

2. Throughout the entire period of time over which the Second Respondent has accused the husband of being dishonest, the husband has received rental income from two properties claimed by the Second Respondent to be owned by the Second Respondent namely the 1 E Street property and the G Street property. Throughout the period from 2014 until 2017 and ongoing, the husband has also had sole ownership of the Country K holiday home. Before 2017, the Second Respondent made no application to rectify what she now claims is a gross breach of trust by her son.[106] The reason proffered by the Second Respondent for her inaction before 2017 was “because I trusted him” albeit her evidence is also and in contradiction, that in 2012, she ceased to trust her son. Not only did she cease to trust her son but her evidence and that of the husband is that she demanded a return of all the Euro account monies to her together with such real properties as were purchased with such monies, in addition to the husband’s transfer of his one half interest in the J Street property to her. The Second Respondent was not a credible witness as to these matters. The Court finds that she made no demands of the husband as claimed by her and by the husband, and that indeed the Second Respondent trusted the husband throughout. And still does.

   [106] Affidavit of Ms B Zammit sworn 21 May 2020, [24] and [31].

3. The power of attorney held by the husband in respect of his mother continues to this day. The Second Respondent has never sought to revoke it since it was first signed in 2009. This is despite the claim in the proceeding that the husband has acted in breach of the power of attorney in his dealings with the Second Respondent and Mr S’s monies. When questioned about this aspect of the case, the following exchange occurred:-[107]

   MR PUCKEY:   See, what I’m wanting to suggest to you, Mrs Zammit, is you actually love your son very much.  You think he’s a good boy.  You think he’s honest and you think he’s trustworthy.

   THE INTERPRETER:   Yes.

   MR PUCKEY:   And that’s why he’s still your power of attorney, right?  You continue to this day to trust him.

   THE INTERPRETER:   I trust.  I trust him.

   [107] Transcript of the proceedings on 27 May 2020, page 116, lines 30-45.

4. The Second Respondent was also not a credible witness when giving evidence as to whether she was, or had been, in receipt of any Centrelink benefit. The Second Respondent gave evidence that she had “never been in receipt of Centrelink payments”. Further, that her husband likewise was not in receipt of any Centrelink benefit at any time between his retirement from work in 1996 and his death in 2012.

5. In March 2019, the wife’s solicitors had written to the Second Respondent requesting relevant information as to whether the Second Respondent has been in receipt of Centrelink benefits and/or had Centrelink entitlements and during what period or periods. The letter also asked for copies of various documents relating to the Second Respondent’s bank accounts amongst other things. The Second Respondent provided no information in response. In July 2019, the wife’s solicitors made a further request of the Second Respondent for financial disclosure. There was no response.

6. In April 2020, a further request was made by the wife’s solicitors for financial disclosure from the Second Respondent. In particular, there was a further request that the Second Respondent provide an authority to Centrelink to enable the wife to find out directly from Centrelink whether or not the Second Respondent had received Centrelink benefits. The reply to that request was “that information is not relevant to the case and therefore won’t be provided”.

7. At trial, the Second Respondent’s evidence was, relevantly “…the question about Centrelink I don’t want to answer that” and later “…I haven’t received anything”. When asked to sign the earlier requested authority to Centrelink the Second Respondent then indicated that she would sign the necessary authority with the knowledge that the wife required that evidence to discover what the Second Respondent had told Centrelink about her financial position. The Second Respondent resiled subsequently from her provision of that authority.

8. The Second Respondent continues her sole ownership of the unencumbered U Street property from which she derives rental receipts. She continues her sole ownership of the J Street property which is the home in which she and the husband live.

9. Although the Second Respondent’s affidavit evidence was that the Euro account monies belonged to she and Mr S, and that the interest receipts were adding to “my and Mr S’s financial position”, the reality was that such monies were never declared by the Second Respondent as monies received by her for taxation and/or Centrelink benefit purposes. Nor were they declared by Mr S. The interest monies were received by the husband and in respect of monies held in his name and controlled by him.

10. In 2008, on the evidence of the Second Respondent, the husband and wife discussed with the Second Respondent and Mr S their proposed purchase of the 1 E Street property. The Second Respondent and Mr S were asked by the husband and wife whether they could use the U Street property as security for the loan they were seeking. The Second Respondent and Mr S agreed with that course subject to the condition that the husband and wife released the security as soon as they were able to do so. In 2010, the husband and wife next discussed with the Second Respondent and Mr S their proposal to subdivide the 1 E Street property and to build two units on the land. There was no discussion as to the Second Respondent and/or Mr S obtaining ownership of one of the units and that has in fact never happened. Until November 2017 (when the Second Respondent joined the proceeding) the Second Respondent made no demand for the transfer of the 1 E Street property to her as conceded in her trial evidence.[108] Nor did the Second Respondent make any request of her son that he commence to pay the rental receipts received by him, to her. The Second Respondent’s evidence was that she regarded the property as that of the husband and wife.[109] Her further evidence was that there was no discussion as to the funding of the subdivision and construction project. This evidence all went to the Euro account monies being monies gifted to the husband in 2007.

    [108] Transcript of proceeding dated 27 May 2020, page 124, lines 35 to 40. 

    [109] Transcript of proceeding dated 27 May 2020, page 125, lines 0 to 15.

11. Likewise the evidence of the Second Respondent was that the husband and wife purchased the G Street property without discussions with her and Mr S as to the funds for the purchase and that being a subject that the Second Respondent and Mr S did not ask any questions about. The husband and wife had discussed their proposal to purchase the property with the Second Respondent and Mr S in 2009.  Such purchase was to occur in the name of the husband and wife. The husband and wife were borrowing some funds additional to their use of the Euro account monies to secure the purchase, and subsequently using the property as an investment property.

12. The Second Respondent’s evidence as to her arranging a single family meeting between Mr S, herself, the husband and his sister, Ms Q, just prior to the death of Mr S, to discuss matters pertaining to Mr S’s health is accepted. The Second Respondent’s evidence that that meeting had as its main purpose a discussion of the Second Respondent’s concerns as to how the husband and wife were funding their development is not accepted by the Court. Ms Q in the giving of her evidence, was unable to provide any consistent evidence as to the purpose of that meeting. It is possible that questions were asked of the husband in respect of his finances at that meeting but if any such discussions occurred, the husband provided no direct answers and according to the Second Respondent, as agreed to by Ms Q, “deflected discussions around other family matters and issues”.[110] Certainly at that meeting there were no demands made by the Second Respondent of the husband with respect to any financial matters.

    [110] Affidavit of Ms B Zammit filed 21 May 2020, [29].

Evidence of MS Q

1. Ms Q is the husband’s sister and the daughter of the Second Respondent. She resides in New South Wales and by occupation is a public servant working for Employer DD.

2. Her evidence in particular was that:-

   a)in 2012, and whilst she was in Melbourne to visit her father, she attended a family meeting with her brother, her mother and father. This was the only such meeting she attended. When asked about what the Second Respondent had told her as to the purpose of that meeting prior to her attending it, Ms Q gave conflicting evidence in answer to the question so that the Court could not accept her evidence as to what the purpose of the meeting was. During the course of the meeting, the health of Mr S was discussed amongst the family members. The evidence of Ms Q as to the content of the discussion conflicted with that of her brother and of her mother save that she stated there was some mention of her brother’s finances.[111] Her evidence was also that there was no direct discussion and/or resolution and/or suggested rectification as to any matters pertaining to the husband’s finances;

   b)the content of the Second Respondent’s affidavit material was prepared by Ms Q and the preparation of her own affidavit material occurred after she had read the affidavit evidence of her mother and her brother;

   c)her evidence went to the protection of her mother’s inheritance;

   d)she assisted her parents in their applications for Centrelink benefits. Mr S was in receipt of an aged pension, and the Second Respondent was in receipt of a carer’s pension. Those pension receipts continued up until 2012 when Mr S died. Following her father’s death, Ms Q assisted the Second Respondent in applying for a Commonwealth Seniors health care card which is income tested. In her mother making that application, her mother was required to complete a declaration of financial affairs. Ms Q’s evidence going to the receipt by the Second Respondent and Mr S of a Centrelink benefit is entirely at odds with the evidence given by the Second Respondent herself as to this matter. The Court does not accept the evidence of the Second Respondent and draws an adverse inference from the Second Respondent’s failure to produce documents as repeatedly requested of her by the solicitors for the wife pertaining to her communications had with Centrelink. The Court draws the inference that the Second Respondent’s statement of assets for Centrelink would not have supported the claims she has made in this proceeding.

   [111] Transcript of proceeding dated 27 May 2020, page 155 at line 10, page 156 at lines 5 to 10 and at lines 20 to 25. 

Section 75(2) of the Act Matters  

1. The Court is required to take into account “the matters referred to in subsection 75(2) [of the Act] so far as they are relevant” pursuant to s 79(4)(e) of that Act. The meaning of “party” in the circumstances of s 75(2) of the Act is limited to the parties to the marriage. 

2. The husband and wife are in good health and are of similar age.[112] The period of cohabitation was approximately 10 years.[113] Each of the parties has capacity for employment. Their property and financial resources shall be as determined by this proceeding.[114]

   [112]Family Law Act 1975 (Cth), s 75(2)(a).

   [113]Family Law Act 1975 (Cth), s 75(2)(k).

   [114]Family Law Act 1975 (Cth), s 75(2)(b).

3. The husband is in receipt of income of approximately $40,000 gross each year.[115] The husband’s taxable income for each of the financial years between 30 June 2006 to 30 June 2012 was as follows:-

   a)30 June 2006 - $43,569;

   b)30 June 2007 - $36,427;

   c)30 June 2008 - $109,807;

   d)30 June 2009 - $32,632;

   e)30 June 2010 - $16,698;

   f)30 June 2011-  $54,357;

   g)30 June 2012 - $8,892.

   The husband was additionally getting paid cash for the jobs undertaken by him which was in addition to his stated income.

   [115]Family Law Act 1975 (Cth), s 75(2)(b).

4. The wife is in receipt of Centrelink.[116] The wife’s taxable income for each of the financial years between 30 June 2007 and 30 June 2012 and the financial year ending 30 June 2014 was as follows:-

   a)30 June 2007 - $18,386;

   (b)       30 June 2008 - $70,167;

   (c)       30 June 2009 - $6,865;

   (d)       30 June 2010 - nil;

   (e)       30 June 2011-  $529;

   (f)        30 June 2012 - $5,949;

   (g)       30 June 2014 - $2,599.

   [116]Family Law Act 1975 (Cth), s 75(2)(b).

5. The wife has an earning capacity that she was unable to exercise for a time in 2019. On her own evidence however she intends (and expects) to obtain employment in the future. The wife has the capacity to seek employment and earn income at least equivalent to the husband’s income however the care of the children will limit the wife’s employment opportunities to some extent. The husband’s income from personal exertion of $810 per week as per his Financial Statement filed 28 April 2020 was not challenged at trial.

6. The wife shall have the ongoing primary care of the husband and wife’s children.[117] Following separation the husband provided little financial assistance to the wife for the support of the children, only commencing to pay child support of $50 a week after the wife made application to the Child Support Agency and the Agency became involved in the collection of such monies. The husband refused to contribute to the children’s school fees, clothing or extra-curricular activities.[118] He did however make payment of these amounts together with his provision of support of the children in the period in which the children lived with him between March 2019 and August 2020. The husband will pay a small amount of child support on his declared income into the years ahead.[119] That is a matter to which the Court gives some weight.

   [117]Family Law Act 1975 (Cth), s 75(2)(c).

   [118]Family Law Act 1975 (Cth), s 75(2)(d).

   [119]Family Law Act 1975 (Cth), s 75(2)(na).

7. It is important that the wife maintain a standard of living that in all the circumstances is reasonable in particular, given her care of the children and the length of the marriage which has affected her ongoing earning capacity.[120] She ceased employment in 2008 and has not resumed employment in the intervening 12 years. She does not have a long term business as does the husband in which to work and derive income. Although the Court notes the income derived by the husband is relatively modest. Neither of the parties have commenced to reside with another person save that the husband has resided for the last four years in the home of his mother, being a home in which he had a one half interest until his transfer to his mother of that interest. He has not had to pay rental in the intervening years since separation. Nor has the wife, in that the parties’ rental income derived from the 1 E Street property is applied in its entirety to the mortgage of the home which the wife and children occupy.

   [120]Family Law Act 1975 (Cth), s 75(2)(g).

8. These matters favour the wife and require a further adjustment of the net assets of the property in a 10 percentage adjustment which is in dollar terms $325,267.40.

Conclusion

Second Respondent’s claims

1. The Second Respondent accepted that on the facts of this case the presumption of advancement in respect of the ownership of the J Street property in favour of the husband, a child of the Second Respondent and Mr S, applied. In Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 the High Court of Australia held at 363-4:-

   ...We are in the presence of the familiar problem that arises whenever a person purchases and pays for property, real or personal, whatever its description may be, the legal title to which is transferred by his direction into the name of another person. If that person is a stranger, the presumption of a resulting trust arises and he holds the property on trust for the purchaser. But if the purchaser is the father of or a person in loco parentis to the legal owner, the presumption arises from the relationship of the parties that the father intended to purchase the property to advance his child and to make the child not only the legal but also the beneficial owner of the property. These presumptions were described as landmarks in the law by Eyre C.B. as far back as 1788 in the leading case of Dyer v. Dyer (1). In Sidmouth v Sidmouth (2), decided in 1840, Lord Langdale M.R. said: “The law applicable to cases of this nature is subject to so little doubt that it has not been questioned in the argument of this case. Where property is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an advancement; the resulting or implied trust which arises in favour of the person who pays the purchase-money, and takes a conveyance or transfer in the name of a stranger, does not arise in the case of a purchase by a parent in the name of a child; but still the relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall take as a trustee; and in this case, as in most others of the like kind, the only question is, whether there is such other evidence. That contemporaneous acts and even contemporaneous declarations of the parent may amount to such evidence, has often been decided. Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but, generally speaking, we are to look at what was said and done at the time.

   (citations omitted)

2. The High Court in Korda v Australian Executor Trustees (SA) Limited (2015) 255 CLR 62 held at paragraph 3:-

   The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it can be taken to have intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties.

   (citations omitted)

3. The Second Respondent accepted that the burden to establish the creation of the trusts as claimed by the Second Respondent was that of the Second Respondent.[121] 

   [121]Re Helen Kaye Herdegen and Kenneth John Herdegen v Commissioner of Taxation (1988) 84 ALR 271.

4. The relevant enquiries, as submitted by the wife, are therefore:-

   a)what conclusions can be drawn upon relevant evidence about the intentions of the Second Respondent and Mr S in 1995 when they advanced title to the J Street property to the husband?; and

   b)what conclusions can be drawn upon relevant evidence about the intentions of Mr S in 2007 when he advanced the Euro account monies to the husband?

5. The evidence of the husband and the Second Respondent in relation to the advance of title to the J Street property to the husband in 1995 was that it was done for “convenience”. The additional evidence, of the Second Respondent, was that it was not the intention of she and Mr S to gift the husband’s one third interest in the property to the husband. The evidence as to convenience, which included the Second Respondent and Mr S’s limited English language skills, was in part in a contextual setting of the Second Respondent and Mr S having many years earlier, purchased their first home in Australia in U Street, Suburb V. This purchase included the obtaining of a mortgage advance; the subsequent paying out of that mortgage; and the tenanting of that property thereafter. Neither the husband nor the Second Respondent placed before the Court any evidence of contemporaneous representations and/or actions and/or declarations which supported the establishment of any trust in 1995 as claimed by the Second Respondent. The suggestion of some inability of Mr S and the Second Respondent to navigate the purchase of a home and ongoing ownership of it (some many years after they had arrived in Australia and already purchased a property) was implausible. The transfer of title to the husband was “in fee simple”. There was no evidence before the Court going to the creation of a trust wherein the husband held his interest in the J Street property beneficially for his parents. There was no necessary and probative evidence to support the Second Respondent’s assertion that the registering of the title in the names of the husband and his parents as joint proprietors in 1995 was not intended to be a gift to the husband. Indeed, there is much to support the absence of any trust.

1. The dealings of the husband and his parents with the J Street property, subsequent to the purchase of that property by them, were further evidence that the husband held title legally and beneficially. The title remained registered jointly at all times without qualification. The husband continued at his discretion to have the use and occupation of the property jointly with his parents, which right of occupation included the adding to the household of his wife’s presence upon marriage and ongoing. The transfer by the husband to the Second Respondent in 2012 was expressed to be a transfer of “all my estate in fee simple” and for valuable consideration. The husband paid stamp duty.[122] The claims by the Second Respondent of the existence of a trust between she and the husband was first made in 2017. The Second Respondent, the Court finds, had not prior to that time made a demand for transfer of property and funds by the husband to her. Rather, such transfers of property and funds were initiated by the husband to defeat any entitlement of the wife and to provide to the Second Respondent the security of her home, being the J Street property. These matters rebut the presumption of advancement.

   [122] Affidavit of Ms Zammit sworn 14 May 2020, [123(a)] and annexures ‘J’ and ‘K’.

2. In relation to the Euro account monies, no evidence was placed before the Court by the husband or the Second Respondent of any contemporaneous representations and/or actions and/or declarations by Mr S or the Second Respondent at the relevant time in 2007. The Second Respondent has asserted during the course of this proceeding, that it was not the intention of she and Mr S to gift these funds to the husband. I accept the submissions of counsel for the wife that such recollection is not evidence of certainty of intent at the relevant time, being 2007. As to the now assertion of the Second Respondent and husband that the placing of the Euro account monies in the name of the husband was convenient at the relevant time, as the Second Respondent and Mr S were in Europe, the husband in Australia, this is again evidence which is implausible. Nothing thereafter supported the existence of any express trust in the actions of the husband in his dealings with the monies. At the time of the advance of the Euro account monies, there were no terms and/or conditions applicable in respect of that advance by Mr S. The evidence of the husband’s use of the monies for his own purposes provided evidence against the existence of a trust.

3. The acts and declarations of Mr S and the husband, being subsequent to the advance in 2007, and admissible only as evidence against the case for a trust, show no claim made or action taken by Mr S at any time consistent with the existence of an express trust. Mr S made no requests of his son for access to the Euro account monies by either Mr S or the Second Respondent during Mr S’s lifetime. Whilst information as to these monies was provided to each of Mr S and the Second Respondent, and by the husband, that information was provided by way of updating the Second Respondent and Mr S as to the husband and wife’s various activities rather than provided in response to any request made by Mr S and/or the Second Respondent as to the whereabouts and/or use of the Euro account monies.

4. In approximately September, October and November of 2012 and through to April 2013, the husband and wife were separated under the one roof and it was clear to each of them that there were significant problems in their marriage, and that their marriage may not persist. It was during this time that the husband commenced to make the transfer of land and monies referred to in these reasons which were transfers intended to defeat the wife’s property claim (as was threatened by the husband to the wife on the wife’s evidence) or, irrespective of intention, likely to defeat an order which could reasonably be anticipated,[123] as submitted by counsel for the wife.

   [123] Pursuant to s 106B of the Family Law Act 1975 (Cth), such transactions are liable to be set aside. By reason of the principles discussed in Gelley & Gelley (No.2) (1992) FLC 92-291, no application pursuant to s 106B of the Act is made by the wife as there is sufficient property remaining in the names of the husband and wife to satisfy the orders sought by the wife.

5. The evidence does not support the making of any financial disclosure by the husband as allegedly demanded by the Second Respondent, or agreement by the husband to meet the alleged demands of the Second Respondent in the transfer of properties or monies to her, prior to Mr S’s death. The Second Respondent’s affidavit evidence did not support such claims and the Second Respondent maintained her affidavit evidence when cross-examined about this matter. A subsequent discussion did occur between the husband and his mother in September or October 2012, which resulted in the husband making the transfers to the Second Respondent that he did.[124] That discussion involved not only properties held by and/or monies held by the husband solely, but also real properties owned by the husband and wife jointly. Those discussions occurred in the context of a breakdown of the husband and wife’s marriage, and as initiated by the husband.

   [124] Affidavit of Ms B Zammit sworn 21 May 2020, [31]; Affidavit of Ms Q sworn 21 May 2020, [14].

6. The Second Respondent’s evidence does not establish by reference to the representations, declarations and other circumstances existing at the time of the advance of the Euro account monies by Mr S to the husband, that there was created an express trust with certainty of intent, subject and object.[125] Nor can the establishment of such a trust be implied on the evidence as to what was said and done by Mr S and the husband. Nor was there any background evidence before the Court as to matters proceeding the advance, supportive of the establishment of a trust.

   [125] Written submissions filed by the Respondent wife of 10 July 2020, [45(g)].

7. The Court finds that no trust attached to either the Euro account monies advanced to the husband by Mr S or the J Street property advance to the husband by the Second Respondent and Mr S. Further, the husband has not acted in breach of his fiduciary duties under the power of attorney in utilising the Second Respondent’s monies in her account. The Second Respondent’s claim thus fails. In those circumstances, the Second Respondent submitted to the Court that the Court ought to consider the Euro account monies to be a significant contribution made on behalf of the husband.

8. Included notionally in the calculation of the parties’ assets and liabilities will be the funds owned by the husband and transferred by the husband to the Second Respondent totalling approximately $983,515 together with the husband’s one half interest in the J Street property. On the evidence, these assets were unilaterally disposed of by the husband in favour of the Second Respondent, in circumstances where the Court finds that such disposition occurred at a time when the parties were separated and where the husband was acting to protect his interests and exclude the wife from her entitlements. The Court also finds at this time that the husband acted in his transfer of the J Street property for not only this reason, but to provide his mother with “security” and “peace of mind” in circumstances where he had made little financial contribution to that property. The Court finds nevertheless that the husband continues to have the use and benefit of the assets disposed of by him. Thus it is necessary, when making orders which are just and equitable in all the circumstances, to notionally include the value of the disposed assets to be attributed as remaining with the husband.[126]

   [126] Gelley & Gelley (No.2) (1992) FLC 92-291 and add backs such as Vass & Vass [2015] FamCAFC 51 (where a “loan” was unilaterally repaid by one of the parties but found at trial not to be repayable was added back for the purposes of calculating an appropriate adjustment of other assets).

9. In considering the impact of Stanford & Stanford (2012) 247 CLR 108 upon the question of add-backs, the Full Court of the Family Court of Australia said in Trevi & Trevi (2018) FLC 93-858 at paragraph 47 :-

   The essence of a claim for addbacks is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court. Adding back does not seek to create property interests that do not exist. Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) of the Act to do justice and equity can require an “accounting” or “balance sheet” exercise for the purposes of s 79(2) and (4), so as to include the value of the dissipated property or expended sums within the total value of the parties’ existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party.

   (citations omitted)

Should an alteration pursuant to s 79 of the Act be made?

1. It is clearly just and equitable that orders altering the parties’ interests in property should be made. The end of the marriage requires a restructuring of the parties’ assets.

2. The orders proposed by the Court will provide the wife with ongoing ownership and security of housing, with an ability to meet the mortgage commitments of the home in which she resides from the rental receipts received by her from the tenancy of the adjoining unit, with such unit being also transferred to her sole proprietorship. This should provide the wife with capital appreciation over time and an income stream.

3. Additionally, the wife shall receive a cash adjustment from the husband which the husband has the capacity to fund. It is not desirable that the husband would retain ownership of the property adjoining the property in which the wife lives. In particular, given the contents of paragraph 20 above. Each of the parties’ sought ownership of the G Street property. The Court determines that ownership of that property should be transferred to the husband with him to make a cash payment to the wife. The wife is in need of cash at the present time and into the future in her support of the children in particular. The purchase of G Street was enabled by the significant capital funds provided by the husband. Each of the husband and wife have transferred funds overseas, the husband to fund the Country K holiday home and the wife to fund property purchases by her family. In the event the husband does not make the necessary cash payment to the wife, then the wife will have an opportunity to purchase the husband’s interest in the G Street property. That may be financially prohibitive for her and if that is the outcome, the property will be required to be sold.

4. The husband shall have the remaining sums of significant cash gifted to him but directed by him into the Second Respondent’s accounts, and his ownership of the G Street property and the Country K holiday home and land together with ongoing occupation of the J Street property. And possibly a return to ownership in that property. He shall also have retention of his income earning business.

5. The property and superannuation interests of the husband and wife shall be adjusted as to 42 percent of the net assets to the wife and 58 percent to the husband. This is a result which sees the husband receive in dollar terms $520,427.84 more than the wife. The wife’s entitlement to a cash sum is calculated by reference to 42 percent of $3,252,674 which is a sum of $1,366,123.08. The wife shall retain assets with a value of $1,172,692. Thus the cash adjustment necessary to be paid by the husband to her is $193,431.08.

6. Orders reflecting this outcome, including the property to be retained by each of the husband and wife are respectively as follows:-

Wife’s entitlement

Husband’s entitlement

Property retained:-

·    the 2 E Street, Suburb F property (being encumbered property); and

·    the 1 E Street, Suburb F property

Property retained:-

·    the G Street, Suburb H property (being an encumbered property);

·    Country K land and holiday home;

·    the motor vehicles; and

·    his business.

Property transferred:-

·    the G Street, Suburb H property

Property transferred:-

·    the 2 E Street, Suburb F property; and

·    the 1 E Street, Suburb F property

Superannuation in the amount of $1,963

Superannuation in the amount of $10,203

Cash payment in the amount of $193,431.08.

1. An alteration of the parties’ interest in property and their superannuation interests in the above manner is determined by the Court in the circumstances of this case to be just and equitable. The Court observes that the superannuation entitlements of each of the parties is very low and that no adjustment of those entitlements is necessary. Both parties will have some time in the work force into the future to increase their superannuation entitlements.

2. The Court shall further make an order in terms of order 13 as sought by the wife. Neither the husband nor the wife were cross-examined by counsel as to this order. The Court considers it appropriate for the wife to retain the children’s passports, birth certificates and the two Euro notes which have been held for the children in circumstances where, by virtue of the final parenting orders made 19 August 2020, the children are to live primarily with the wife. Such an order will ensure that the children’s documentation is readily accessible if need be. Further, the Court considers that such an order will lessen the conflict between the husband and wife.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 16 October 2020.

Associate: 

Date:  16 October 2020