Krugar and Krugar

[2010] FamCA 17

FAMILY COURT OF AUSTRALIA

KRUGAR & KRUGAR [2010] FamCA 17

FAMILY LAW – PROPERTY – Alteration of property interests – application of s 79(4) of the Family Law Act 1975 (Cth) – orders that are just and equitable

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) s 79(4)

Kennon & Kennon (1997) FLC 92-757

APPLICANT: Ms Krugar

RESPONDENT: Mr Krugar

FILE NUMBER: SYC 524 of 2007

DATE DELIVERED: 21 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 9 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nash

SOLICITOR FOR THE APPLICANT: De Luca-Leonard

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. An order is made, pursuant to section 79, in terms sets out in paragraphs 2 to 14 below.

2. Within seventy (70) days the Husband pay to the Wife the sum of $369,737.00.

3. In the event that the Husband fails to make the payment referred to in paragraph 2 within the time referred to in paragraph 2 the Husband and Wife shall forthwith do all acts and things necessary including appointing Ray White Real Estate Agents and Auctioneers as selling agents (selling agents) to effect a sale of the former matrimonial home known as B property in the State of New South Wales and more formally described as Certificate of Title Folio Identifier … (matrimonial home) for the best price reasonable obtainable.

4. For the purposes of sale of the matrimonial home:-

   4.1.it be listed at a price of $730,000 or such other sum as may be recommended from time to time by the selling agent;

   4.2.for sale by private treaty for 3 months if recommended by the selling agent and otherwise by auction in accordance with the balance of paragraph 4 below;

   4.3.the parties will each cooperate in every way with the agents including but not limited to:

   4.3.1.making the key available to the agents;

   4.3.2.allowing inspection of the matrimonial home at all reasonable times requested by the agents;

   4.3.3.doing or saying nothing to hinder or prevent a sale being effected and absenting themselves from any and all inspections including private and open house inspections and building, pest and survey reporters;

   4.3.4.ensuring that the matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers;

   4.3.5.signing all documents requested by the agents in relation to the listing for sale of the matrimonial home except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

   4.3.6.the husband shall provide vacant possession of the matrimonial home two weeks prior to any proposed date for the settlement of the sale of the matrimonial home.

   4.4.the parties will each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price of $730,000.00 or else the price nominated by the agent pursuant to paragraph 4.1;

   4.5.the Wife’ solicitor will have the primary conduct of the sale on behalf of both parties provided that the Husband’s solicitor, if any, will be entitled to independently advise and represent the Husband in respect of the sale and all matters arising thereon at the Husband’s sole cost;

   4.6.the Wife will be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the matrimonial home and for the purposes of this paragraph the Husband shall, in the event that the payment referred to in paragraph 2 is not made within the period referred to in paragraph 2, do all things necessary to deliver a full set of keys to the matrimonial home to the Wife's solicitor;

   4.7.subject to the agent's nomination set out in paragraph 4.2 above in the event that the matrimonial home remains unsold for a period of 3 months from the date upon which it was first listed for sale, the solicitor for the Wife will list the matrimonial home for sale by public auction with the selling agent; the costs of and incidental to such appointment (including advertising expenses) to be borne equally by the parties but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

   4.8.the reserve price for the purpose of such auction will be such as the selling agent nominates provided that if both (but not one only) of the parties disagree with the nominated price it will be the price nominated as a fair market value by a licensed valuer appointed by the President of the Australian Institute of Valuers. The costs of such valuation will be borne by the parties equally but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

   4.9.in the event that the bidding at the auction does not reach the reserve price the parties shall negotiate with the highest bidders or any other interested person and effect a sale of the matrimonial home at a price which is not more than 10% below the reserve price;

   4.10.if the matrimonial home remains unsold, the Wife (or upon her nomination the Wife’s solicitor) will do all acts and things and sign all documents necessary to immediately re-list the matrimonial home for sale by public auction again, on a date nominated by the selling agent and at such auction there will be no reserve price;

   4.11.the Husband keep the home in good repair and clean and tidy pending sale and make the home reasonably available for inspection by agents and prospective buyers and be solely liable for all and any costs of cleaning, rectification and repairs incurred by the selling agents in presenting the property for sale such costs to be taken from the Husband’s share of the net proceeds of sale; and

   4.12.until the Husband vacates the matrimonial home, the Husband will pay all regular payments, if any, in respect of the mortgage to St George Bank Limited No … (the subsisting loan), Council rates, water rates, insurance, land tax and other fees associated with the matrimonial home, including any arrears owing on regular instalments, and will indemnify the Wife in relation to same.  In the event that the Husband does not meet the liabilities under this paragraph then such amounts be deducted from the Husband’ share of the proceeds of sale.

5. On settlement of the sale of the matrimonial home the proceeds of sale be paid in the following manner and priority:

   5.1.all costs and expenses of sale including legal costs and disbursements, agent’s commission, valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

   5.2.the amounts (if any) required to discharge the mortgage to St George Bank Limited Number …;

   5.3.the amounts required to pay all municipal and water rates outstanding with respect to the matrimonial home;

   5.4.50.6 percentage of the net amount then remaining (as adjusted in accordance with any other provision in these orders) to the Wife; and

   5.5.the balance (as adjusted by any other provision in these orders) then remaining to the Husband.

6. From the date of this Order the Husband shall not further encumber the matrimonial home, nor increase the amount of the subsisting loan and shall be responsible solely for paying out any fresh loan on the matrimonial home which does not appear as at 9 February 2009 on a title search of the matrimonial home and the costs associated with this, failing which the full value of such loan and costs shall be deducted from the Husband’s share of the net sale proceeds.

7. Within 7 days from the making of these Orders the parties do all acts and things and sign all documents necessary to effect the sale of the properties identified in Schedule A for the best price reasonably attainable.

8. For the purposes of the sale of all real property identified in Schedule A:

   8.1.the Wife, or at her request, the solicitor for the Wife will immediately list the land for sale by private treaty with CH Real Estate in respect of the properties in South Australia and RT Real Estate in respect of the Tasmanian property, the costs of and incidental to such appointments to be born equally by the parties as and when they fall due;

   8.2.the parties will each co-operate in every way with the agents including but not limited to:-

   8.2.1.doing or saying nothing to hinder or prevent a sale being effected;

   8.2.2.signing all documents requested by the agents in relation to the listing for sale of the properties except a contract or agreement for sale which has not been authorised by the Wife;

   8.2.3.accepting the Wife's signature as attorney for C Krugar, having regard to Order 10 below except a contract or agreement for sale which has not been authorised by the Wife;

   8.3.the parties will each execute a Contract for Sale on the form prepared by the solicitors or conveyancers having the conduct of the sale being in the case of the South Australian properties, Hendry conveyancers and in the case of the Tasmanian properties a solicitor or conveyancer nominated by the Wife's solicitor at a price agreed upon by the parties or in the absence of any agreement, at or above the price nominated by the agent appointed in paragraph 8.1;

   8.4.for the purposes of sale, the costs of and incidental to such appointment of conveyancers is to be born equally by the parties as and when same fall due;

   8.5.in the event that any of the land identified in Schedule A remains unsold for a period of 3 months from the date upon which it was first listed for sale the parties will list that land or lands for sale by public auction with the appointed selling agent; the costs of and incidental to such appointment (including advertising expenses) to be born equally by the parties but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

   8.6.the reserve price for the purpose for such auction will be such as the appointed selling agents propose provided that if both (but not one) of the parties disagree with reserve then it will be the price nominated as a fair market value by a licensed valuer appointed by the president of the Australian Institute of Valuers. The costs of such valuation will be born by the parties equally but in the event that the Husband fails to comply with this order the Wife will be at liberty to make the payment and receive a reimbursement for that payment (together with interest from the date of the payment at the rate prescribed in the Family Law Rules) from the Husband’s share of the net proceeds of the sale of the matrimonial home;

   8.7.in the event that the bidding at the auction does not reach the reserve price the parties shall negotiate with the highest bidders or any other interested person and effect a sale of that land at a price which is not more than 10% below the reserve price;

   8.8.if the subject land remains unsold the Wife, or upon her nomination, the Wife’s solicitor will do all acts and things and sign all documents necessary to immediately re-list the property for sale by public auction again, on a date nominated by the agent and at such auction there will be no reserve price.

9. On settlement of the sale of each of the properties in Schedule A the proceeds of sale be paid in the following manner and priority:-

   9.1.all costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees and auction expenses (including payment of any such expenses as have been paid by either or both of the parties);

   9.2.the amounts required to pay all municipal and water rates outstanding with respect to the subject property;

   9.3.in the each case where C Krugar is a named owner then one third of the net sale proceeds to each of the parties and C Krugar; and

   9.4.in all other cases one half of the net sale proceeds to the Wife and the balance then remaining to the Husband.

10. Within 7 days of the date of these Orders the Wife do all acts and things necessary and sign all documents to secure from C Krugar an enduring Joint Power of Attorney to operate in connection with the listing for sale, sale and completion of sale of all and any property identified in Schedule A at a cost to be born equally by the parties.

11. From the date of this order the Husband shall not further encumber the properties nor any of them, nor increase the value of any loans subsisting over the properties or any of them and shall be responsible solely for paying out any fresh loan which does not appear as at 9 February 2009 on a title search of any of the properties and the costs associated with this, failing which the full value of such loan and costs shall be deducted from the Husband's share of the net sale proceeds.

12. The Husband retain to the exclusion of the Wife the items of personal property, superannuation, savings, motor vehicle, furnishings, furniture and household affects, chattels and personalty including any jewellery and stamps in his possession as at the date of the making of these Orders.

13. The Wife retain to the exclusion of the Husband the items of personal property, superannuation, savings, motor vehicle, furnishings, furniture and household affects chattels and items of personalty in her possession as at the date of the making of these Orders.

Schedule A:

Lot 4 … South Australia, (Folio Identifier …)

Lot 3 … South Australia, (Folio Identifier …)

Lot 1 … South Australia, (Folio Identifier …)

Lot 106 … Tasmania, Certificate of Title Volume … Folio …

Lot 411 … Tasmania, Certificate of Title Volume … Folio …; Property Number: …

1. In the event the husband has not done so, he shall pay the K rates referred to at item 24 in the balance sheet referred to in the Reasons for Judgment and in the event he fails to do so, that payment is to be made from monies the husband would otherwise receive from the proceeds of the sale of the K properties.

2. In the event that any of these Orders directs a party to these proceedings to execute or sign an instrument, document or deed and that person refuses or neglects to comply with that direction within 7 days of a written request to do so or for any other reason the court considers it necessary to exercise its powers under s 106A of the Family Law Act 1975 (Act) then the court may appoint one of its officers or another person to execute the instrument, document or deed in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the instrument, document or deed.

3. Liberty be granted to any party on 7 days notice to seek further orders in order to implement these orders.

IT IS NOTED that publication of this judgment under the pseudonym Krugar & Krugar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 524 of 2007

MS KRUGAR

Applicant

And

MR KRUGAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter is about what alterations should be made to the interests of the parties in property.

2. It is the wife’s position that the current assets of the parties should be divided evenly.  It is the husband’s position that the assets of the parties should be divided as to 80 per cent in his favour, with 20 per cent to go to the wife.

3. The husband wished to raise allegations about the wife’s behaviour at the end of the marriage.  However, having been given two opportunities to file admissible evidence in relation to that topic he failed to do so.  In any event, I found that the allegations that he made were not ones that satisfied the test in Kennon & Kennon (1997) FLC 92-757, 84,276 and the probative value of the evidence the Husband wished to lead about this was substantially outweighed by the danger that the evidence might cause or result in undue waste of time (see s 135 Evidence Act 1995 (Cth)).

4. Some of the property of the parties was held in joint names with the son of the parties, C Krugar.  C’s lawyer, appeared and gave evidence on behalf of C.  The effect of that evidence is that C consents to the sale of the properties of which he is a joint registered proprietor at amounts that were set out in Notation 26 of orders made by me on 11 February 2008 (as to the probable value of those properties), being “somewhere between $200,000 and $245,000.” 

Applications of the parties

1. The wife’s formal application was contained in a document entitled “Draft Orders Sought by the Wife”.  The wife seeks orders in the following terms:

   A)Former matrimonial home.

   1.Within 28 days from the date of these Orders the Wife’s solicitor do all acts and things necessary including appointing Ray White Real Estate Agents and Auctioneers, […], as selling agents (selling agents) to effect a sale of the former matrimonial home known as [B property] in the State of New South Wales and more formally described as Certificate of Title Folio Identifier […] (matrimonial home) for the best price reasonable obtainable.

   2.For the purposes of sale of the matrimonial home:-

   (a)   it be listed at a price of $730,000 or such other sum as may be recommended by the selling agent;

   (b)     for sale by private treaty for 3 months if recommended by the selling agent and otherwise by auction in accordance with the balance of paragraph 2 below;

   (c)     the parties will each cooperate in every way with the agents including but not limited to:

   (i)making the key available to the agents;

   (ii)allowing inspection of the matrimonial home at all reasonable times requested by the agents;

   (iii)doing or saying nothing to hinder or prevent a sale being effected and absenting themselves from any and all inspections including private and open house inspections and building, pest and survey reporters;

   (iv)ensuring that the matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and

   (v)signing all documents requested by the agents in relation to the listing for sale of the matrimonial home except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

   (d)     the parties will each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price of $730,000.00 or else the price nominated by the agent pursuant to paragraph A4(a);

   (e)     the Wife’ solicitor will have the primary conduct of the sale on behalf of both parties provided that the Husband’ solicitor, if any, will be entitled to independently advise and represent the Husband in respect of the sale and all matters arising thereon at the Husband’ sole cost;

   (f)   neither party may confer on any agent any right to any sole or exclusive agency in respect of the matrimonial home or to any commission;

   (g)     the Wife will be entitled upon reasonable notice once per fortnight to enter and view the state of repair of the matrimonial home and for the purposes of this clause the Husband shall within 7 days of the date of this Order do all things necessary to deliver a full set of keys to the home to the Wife's solicitor;

   (h)     subject to the agent's nomination set out in clause 2 (b) above in the event that the matrimonial home remains unsold for a period of 3 months from the date upon which it was first listed for sale, the solicitor for the Wife will list the matrimonial home for sale by public auction with the selling agent the costs of and incidental to such appointment to be borne equally by the parties;

   (i)     the reserve price for the purpose of such auction will be such as the selling agent nominates provided that if both (but not one only) of the parties disagree with the nominated price it will be the price nominated as a fair market value by a licensed valuer appointed by the President of the Australian Institute of Valuers. The costs of such valuation will be borne by the parties equally;

   (j)     in the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the matrimonial home at a price which is not more than 10% below the reserve price;

   (k)    if the matrimonial home remains unsold, the Wife’ solicitor will do all acts and things and sign all documents necessary to immediately re-list the matrimonial home for sale by public auction again, on a date nominated by the selling agent and at such auction there will be no reserve price;

   (1)    The Husband keep the home in good repair and clean and tidy pending sale and make the home reasonably available for inspection by agents and prospective buyers and be solely liable for all and any costs of cleaning, rectification and repairs incurred by the selling agents in presenting the property for sale such costs to be taken from the Husband's share of the net proceeds of sale;

   (m)   As of the date of these Orders the Husband will pay all Council rates, water rates, insurance, land tax and other fees associated with the matrimonial home and will indemnify the Wife in relation to same;

   (n)     A consequential property order that the Husband pay Council rates, water rates, insurance and mortgage instalments in respect of the matrimonial home pending any sale of the home. In the event that the Husband does not meet the liabilities under this Order then such amounts be deducted from the Husband’ share of the proceeds of sale. This is not intended to limit any other process available to a party in the event of a party failing to comply with an order.

   3.On settlement of the sale of the matrimonial home the proceeds of sale be paid in the following manner and priority:

   a.    all costs and expenses of sale including legal costs and disbursements, agent’s commission, valuer’s fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);

   b.    the amounts required to discharge the mortgage St George Bank Limited Number […] (subsisting loan);

   c.    the amounts required to pay all municipal and water rates outstanding with respect to the matrimonial home;

   d.    one half of the net amount then remaining (to which figure is added back any adjustment in relation to rates necessary to give effect to clauses 4 m or 4 n) to the Wife;

   e.    the balance then remaining to the Husband.

   4.From the date of this Order the Husband shall not further encumber the matrimonial home, nor increase the value of the subsisting loan and shall be responsible solely for paying out any fresh loan on the matrimonial home which does not appear as at the date of this Order on a title search of the matrimonial home and the costs associated with this, failing which the full value of such loan and costs shall be deducted from the Husband’s share of the net sale proceeds.

   B)Real Property

   1. .Order that within 7 days from the making of these Orders the parties do all acts and things and sign all documents necessary to effect the sale of the properties identified in Schedule A for the best price reasonably attainable.

   2.For the purposes of the sale of all real property identified in Schedule A:

   (a)   the solicitor for the Wife will immediately list the land for sale by private treaty with [HC] Real Estate in respect of the properties in South Australia and [RT] Real Estate in respect of the Tasmanian property, the costs of and incidental to such appointments to be born equally by the parties as and when they fall due;

   (b)     The parties will each co-operate in every way with the agents including but not limited to:-

   (i)Doing or saying nothing to hinder or prevent a sale being effected;

   (ii)Signing all documents requested by the agents in relation to the listing for sale of the properties except a contract or agreement for sale which has not been authorised by the Wife;

   (iii)Accepting the Wife's signature as attorney for [C Krugar], having regard to Order B4 below except a contract or agreement for sale which has not been authorised by the Wife;

   (c)     The parties will each execute a Contract for Sale on the form prepared by the solicitors or conveyancers having the conduct of the sale being in the case of the South Australian properties, Hendry conveyancers and in the case of the Tasmanian properties a solicitor or conveyancer nominated by the Wife's solicitor at a price agreed upon by the parties or in the absence of any agreement, at or above the price nominated by the agent appointed in Order B2 (a);

   (d)     For the purposes of sale, the costs of and incidental to such appointment of conveyancers is to be born equally by the parties as and when same fall due;

   (e)     In the event that any of the land identified in Schedule A remains unsold for a period of 3 months from the date upon which it was first listed for sale the parties will list that land or lands for sale by public auction with the appointed selling the costs of and incidental to such appointment to be born equally by the parties;

   (f)   The reserve price for the purpose for such auction will be such as the appointed selling agents propose provided that if both (but not one) of the parties disagree with reserve then it will be the price nominated as a fair market value by a licensed valuer appointed by the president of the Australian Institute of Valuers. The costs of such valuation will be born by the parties equally;

   (g)     In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of that land at a price which is not more than 10% below the reserve price;

   (h)     If the subject land remains unsold the Wife’s solicitor will do all acts and things and sign all documents necessary to immediately re-list the property for sale by public auction again, on a date nominated by the agent and at such auction there will be no reserve price.

   3.On settlement of the sale of each of the properties in Schedule A the proceeds of sale be paid in the following manner and priority:-

   (a)     All costs and expenses of sale including legal costs and disbursements, agents commission, valuers fees and auction expenses (including payment of any such expenses as have been paid by either or both of the parties);

   (b)     The amounts required to pay all municipal and water rates outstanding with respect to the subject property;

   (c)     In the each case where [C Krugar] is a named owner then one third of the net sale proceeds to each of the parties and [C Krugar];

   (d)     In all other cases one half of the net sale proceeds to the Wife and the balance then remaining to the Husband.

   4.That within 7 days of the date of these Orders the Wife do all acts and things necessary and sign all documents to secure an enduring Joint Power of Attorney in respect of the principal, [C Krugar] to operate in connection with the listing for sale, sale and completion of sale of all and any property identified in Schedule A at a cost to be born equally by the parties.

   5.Order that as of the date of this the Husband shall not further encumber the properties nor any of them, nor increase the value of any loans subsisting over the properties or any of them and shall be responsible solely for paying out any fresh loan which does not appear as at the date of this Order on a title search of any of the properties and the costs associated with this, failing which the full value of such loan and costs shall be deducted from the Husband's share of the net sale proceeds.

   C)Other Property and Superannuation:

   1.Within 28 days of the date of these Orders the Husband pay to the Wife a sum which represents ¹/2 of the balance of his terms deposits with ANZ and any other financial institution whether in his name or held for him by a third party.

   2.The Husband retain to the exclusion of the Wife the items of personal property, superannuation, savings, motor vehicle, furnishings, furniture and household affects, chattels and personalty including any jewellery and stamps in his possession as at the date of the making of these Orders.

   3.The Wife retain to the exclusion of the Husband the items of personal property, superannuation, savings, motor vehicle, furnishings, furniture and household affects chattels and items of personalty in her possession as at the date of the making of these Orders.

   Schedule A:

   Lot 4 […] South Australia, (Folio Identifier […])

   Lot 3 […] South Australia, (Folio Identifier […])

   Lot I […] South Australia, (Folio Identifier […])

   Lot 106 […] Tasmania, Certificate of Title […]

   [Lot] 411 […] Tasmania, Certificate of Title […]

   D)Other:

   1.In the event that any of these Orders directs a party to these proceedings to execute or sign an instrument, document or deed and that person refuses or neglects to comply with that direction within 7 days of a written request to do so or for any other reason the court considers it necessary to exercise its powers under s 106 (sic) of the Family Law Act 1975 (Act) then the court may appoint one of its officers or another person to execute the instrument, document or deed in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the instrument, document or deed.

   2.Declaration that it is the intention of these Orders that they finally determine all financial relationships between the parties to avoid any further proceedings between them under s 81 of the Act.

1. In addition to those orders sought, the wife sought an order that the husband provide vacant possession of the B property at the time of settlement.  The wife also requested the carriage of the conveyancing transactions as she asserts that that is necessary and I have been invited to conclude that the husband will not easily co-operate with orders for the sale of the properties.  

2. The husband’s Application for Final Orders is contained in a Response to an Application for Final Orders filed on 23 March 2007 and is set out below:

   1.The Application for Final Orders by the wife filed on 29 January 2007 be dismissed.

   2.That the parties’ son [C Krugar] be joined as a party to these proceedings.

   3.That the parties do all acts and things and sign all documents to cause the property known as “[H]” [at K], South Australia to be sold for the best price reasonably obtainable and the net proceeds of sale be disbursed: -

   a.As to one-third to the husband.

   b.As to one-third to the wife.

   c.As to one-third to the child of the marriage [C Krugar].

   4.The wife do all acts and things to cause to be delivered to the husband or his solicitor in good order and condition the items of the husband’s property (including jewellery, oil paintings, stamps and coins) on the schedule attached to this Response.

   5.That forthwith upon the making of Order 3, and upon delivery of the said items of property in good order and condition the husband pay or cause to be paid to the wife or her solicitor the sum of $10,000.00.

   6.That all items of property and financial resources not specifically dealt with by these Orders be declared to solely belong to the party who has possession of such item of property and financial resources, or in whose name such items are held of registered, including real estate, bank accounts and interests in superannuation schemes.

   Schedule

   quantity description  est.value

   2antique rings with precious stones, from [the husband’s]       350.-parents, slightly damaged

   1          mens family crest seal ring  550.-

   1         mens diamond ring (9 diamonds)  525.-

   1          black pearl neclace [sic] with matching ear rings  450.-

   1          mens diamond and sapphire ring  500.-

   1          jade stature (dark green, chinese [sic])  800.-

   1          jade neclace [sic] ring  325.-

   1         ancient chinese [sic] coin  875.-

   1          large jade budha neclace [sic] with chain  475.-

   1          small jade budha neclace [sic] without chain  375.-

   2          oil paintings  1,675.-

   set                   rare ~ […] stamps (poland)[sic] (unmarked)  100,000.-

   various             rare ~ 1900 stamps  100,000.-

   various             rare ([…]) stamps (unmarked & marked)  80,000.-

   various             rare coins and notes (european origion) [sic]  65,000.-  

   1         rare gold coin ([…]) [sic]  25,000.-

   estimated total     376,900.-

3. It can be seen that, the husband sought that the wife’s application be dismissed.  He sought that the property known as “H” at K, SA be sold and that the net proceeds be distributed equally in thirds between the parties and C.  He further sought that the wife deliver to him items contained in a schedule attached to the response.  The schedule has items listed which the husband values at an estimated total of $376,900.  The schedule includes, amongst other things, various rare stamps (unmarked and marked) valued at $80,000.

4. The husband also sought to pay an amount of $10,000 to the wife for the return of those items, but otherwise, each party was to retain what they had.

5. The husband informed me at the hearing that he had issued a subpoena for C to be in attendance at the hearing to give evidence but he had not served the subpoena.  The husband had the opportunity to ask C’s solicitor questions in cross-examination.

Short history

1. The husband was born in 1943, is 66 years of age and was born overseas. 

2. The wife was born in 1957, is 52 years of age and was born overseas.

3. The parties commenced cohabitation on 8 December 1983 and were married in 1984.

4. There was one child of the marriage, C Krugar born in  1985.  C is now 24 years of age.

5. There was an initial separation of the parties between August 2002 and March 2003.  At that time the wife left the matrimonial home with C.

6. In an Application for Divorce filed by the husband, there was an initial dispute as to the date of separation.  The husband claimed the parties were separated in August 2002.  In a response the wife claimed that separation did not occur until 18 July 2005.  Ultimately, Registrar Walsh accepted that the wife’s response was discontinued.  Consequently, a decree nisi of dissolution of the parties’ marriage was pronounced on 21 March 2006, based upon the husband’s assertion of the separation date. 

7. At a hearing before me on 11 February 2008, I questioned the husband about his claim that he had “separated under the one roof” from August 2002 until July 2005 when the wife moved out of the matrimonial home.  Apart from a lack of a sexual relationship during that time, the husband conceded that “nothing did change in the day to day activities” of the relationship and he agreed with me that “to the outsider looking on” not much had changed (transcript, 11 February 2008, 29).  I commented at that hearing that the issue of whether the husband did in fact separate from the wife under the one roof would not be of great concern in the final analysis.  Obviously, in addition to other periods when the parties were together, I will consider what contributions were made by each of the parties during the period August 2002 and July 2005 while they resided together in the same residence.

8. I was also informed, prior to the final stage of the hearing, that the husband has remarried a 32 year old woman and they have a child.  His current wife also has a nine year old daughter from a previous relationship.  There may be a second child in the husband’s household.  The husband states in his “Change of Advise” [sic] document that he has a partner and two children living with him in B.  The husband’s Financial Statement of 27 January 2009 at Item 34 states he has a new partner Ms M but he has left the number of dependants unspecified. 

DOCUMENTS READ BY THE PARTIES 

1. The documents read by each of the parties are set out hereunder.

   Wife’s Documents

2. The wife sought to read the following documents:

   20.1.Application for Final Orders of the wife filed 29 January 2007;

   20.2.Wife’s affidavit filed 20 July 2007;

   20.3.Wife’s Financial Questionnaire filed 4 February 2008;

   20.4.Wife’s affidavit filed 7 May 2008;

   20.5.Wife’s affidavit filed 13 August 2008;

   20.6.Wife’s Financial Statement filed 13 August 2008; and

   20.7.Wife’s affidavit filed 30 January 2009. 

   Husband’s Documents

3. The husband read the following documents:

   21.1.Response to an Application for Final Orders of the husband filed 23 March 2007;

   21.2.Husband’s Financial Questionnaire filed 22 January 2008;

   21.3.Affidavit of Mr G filed 7 May 2008;

   21.4.Affidavit of Mr L filed 7 May 2008;

   21.5.Affidavit of Mr I filed 5 June 2008;

   21.6.Affidavit of Mr Y filed 18 June 2008;

   21.7.Husband’s affidavit filed 30 September 2008;

   21.8.Husband’s document entitled “Change Advise [sic] to Court” filed 28 November 2008;

   21.9.Two affidavits filed by the husband on 27 January 2009;

4. There was also on the Court file a Financial Statement filed by the husband on 27 January 2009.  This was not referred to during the hearing and I have no confidence that it was served upon the wife.  The wife’s counsel at the hearing and the Court were unaware of it.  The husband did not make it clear at the hearing that he wished to rely upon that Financial Statement.  The husband was cross-examined upon a prior Financial Statement.  I considered recalling the parties but as I will mention later, nothing arises of any significance from the husband’s updated un-read Financial Statement.  The Financial Statement was untested and where it conflicts with other agreed facts or other evidence that was available to be tested at the hearing I prefer the evidence actually presented at the hearing.  There are other parts of the financial statement which do not seem to be controversial which I refer to later. 

C Krugar

1. C Krugar relied upon an affidavit of his solicitor, Steven Lamont filed 29 January 2009.

Credit

1. The husband had a very rigid and narrow view of the value of the contributions that the wife made during the 22 years that they were together.  That attitude was demonstrated in final submissions where he indicated that he may as well kill himself if the Court makes orders in the terms sought by the wife.  His general evidence was that the wife retained funds that she earned for her own purpose.  I gained the clear impression from the husband’s evidence in the witness box that he was not prepared to readily concede anything that did not fit within, what I find to be an unrealistic view of what happened during the marriage. 

2. I accept that the husband was asked to provide primary documentation in relation to his current business activities and substantially failed to do so.  Counsel for the mother, however, made no submission based on any assertion that the husband had failed to make full and frank disclosure.  The fact that he did not co-operate in providing appropriate documentation, however, is a matter that goes to the husband’s credit.

3. There was considerable confusion about the information given at the Court in relation to the husband’s medical condition.  When the husband’s previous solicitor appeared on his behalf before me on 13 June 2008, he indicated that the husband had had a heart attack and that he sought an adjournment.  A medical certificate was provided from Dr F, a Cardiology Registrar of D Hospital which was dated 5 June 2008.  It was in the following terms:

   [The husband] (D.O.B : […]) is presently admitted in coronary care unit at [D Hospital] for management of an acute myocardial infarction (heart attack).

   He has proceeded on to a conorary angiogram.  This has revealed significant coronary vessel disease, which is life threatening and requiring relatively urgent coronary bypass surgery.

   Taking into account his operation, post-operative recovery, and rehabilitation, he will require a minimum of 4 weeks before consideration for further court proceedings can be made.  It is advisable that before recommencement of court proceedings he should be assessed by a medical professional.

   Please feel free to contact me regarding the above 

4. The matter again came before me on 28 August 2008.  On that day the husband’s former solicitor provided a medical certificate from Dr O.  It was in the following  terms:

   [The husband] had a heart attack in June 2008 and had a coronary bypass operation.

   He has not been well since and suffers from Depression.

   This has been brought on by his heart attack and also by his court case for divorce by his wife.

   He is at present undergoing counselling by a Psychologist and as such is not in a proper mental state to attend court.

   It would be to his benefit to delay his court case for a month until 21.9.2008 so that his health is improved.

5. So, Dr F said that the husband needed urgent coronary bypass surgery and his general practitioner then subsequently said that he had had a coronary bypass operation.  The husband, who now represents himself, said that after discussions with his doctors at the hospital and considering the options, he decided not to have bypass surgery and he couldn’t explain why there was a medical certificate from his general practitioner was presented to the court on his behalf saying that he had had one.  Towards the end of the court appearance on 27 October 2008 the husband actually disclosed that between the time of the two medical certificates he had been overseas on business to Shanghai, China.

6. The extent of the conflict in the information the husband has provided about his health, is such that it affects his overall credit. 

7. The fact that the husband in the Financial Statement that he swore on 27 January 2009 asserted that both the B property and the K properties had no value to him, does him no credit. 

8. Of the two parties, the wife gave her answers in a more open manner and where there is conflict between the evidence of the two parties (absent other objective evidence) I prefer the evidence given by the wife.

9. Notwithstanding the fact that the wife’s evidence is to be preferred to the husband’s, there are not many important areas where there is disagreement between the parties.  For example, one issue that arose was whether or not the wife provided to the husband from her earnings during the marriage a sum of $11,000 for the purposes of assisting the husband in acquiring real estate.  The wife gave evidence that she did do that.  The husband seemed to accept that he received some monies from the wife but was disputing that the amount was $11,000.  Although I accept the wife’s version about this, little turns on it.  There is no evidence before me that the wife used money earned by her during the marriage for any purpose other than providing for the family consisting of herself, the husband and C. 

Chronology

1. In 1978, the husband purchased a unit in Sydney for $42,000 with a mortgage of $38,000. 

2. On 7 December 1983, the husband purchased land at Lot 411, Tasmania (funded by a loan) for $7,500. 

3. On 8 December 1983, the parties commenced cohabitation at the husband’s Sydney unit.  The wife was unable to work as she did not have a visa.  At this time, according to Mr I’s retrospective valuation, the Sydney unit was valued at $81,000 (affidavit of Mr I, filed 5 June 2008, Annexure “A”).    

4. In March 1984, the parties married.  At that time, the wife had no significant assets.  The husband was employed earning approximately $300 per week.  The mortgage repayments were approximately $289 per month.

5. In May 1984, the husband purchased Lot 1 at K, SA for $9,000 (“Lot 1.”)  The purchase was funded by a loan. 

6. In 1985, the parties’ son, C was born.  The wife was the primary homemaker and parent during the marriage.

7. Between September 1986 and March 1996, the wife commenced employment full time earning $325 per week.  The wife delivered and collected C from child care.  The wife used her income to pay child care in the amount of $80 per week and paid all groceries and household expenses, and child expenses.  The wife says, and I accept, did the housework and was the primary caregiver for the child.

8. In October 1986, the parties purchased property at Lot 106, TAS in the husband’s name.  The purchase price of $6,500 was funded by loans.

9. In 1989, the husband was employed by an international company and travelled a lot away from home.  The husband travelled about 4 times a year and was away between 4 and 6 weeks each time (and sometimes between 6 and 8 weeks).  The husband’s income paid for the mortgage and rates.  The wife paid all other household and personal expenses for the child.

10. In March 1990, the parties purchased Lot 4 at K, SA (“Lot 4”) for $23,000 using borrowed funds.  The property was purchased in the names of each of the parties and C.

11. In October 1991, the parties purchased Lot 3 at K, SA (“Lot 3”) for $25,000 using borrowed funds.   The property was purchased in the names of each of the parties and Cristopher. 

12. In 1991, the parties purchased a boat for $10,000 and the wife contributed a lump sum of $11,000 to the parties’ mortgage debt.

13. By December 1996 the Sydney unit was sold and in or about December 1996, the parties purchased property in B, NSW for $345,000 in the husband’s name using the balance of proceeds of the sale of the Sydney unit of $286,000, a St. George Bank mortgage of $50,000, and the remaining balance from joint savings. 

14. The wife paid the child’s school fees of $2,000 per annum and after school care fees of $120 per week, educational, extra curricular and other expenses.

15. In March 1995, the wife commenced work with her current employer earning approximately $29,000 per annum.

16. In September 1997, the wife’s mother died in Mauritius.

17. On 7 June 2000, the Lot 1 property was transferred into the names of each of the parties and their son.

18. In July 2001, the wife’s father died in Mauritius.  The wife and her siblings inherited their parents’ family home as tenants-in-common in equal shares.  The wife paid for the parties to go to Mauritius. 

19. In 2002, the husband and a female friend travelled to Europe.  The husband gave his friend $2,035.00 and paid for her travel expenses.

20. The wife states that on 6 September 2002, the parties separated and the wife and C (then aged 17 years) moved into rented accommodation.  The husband attempted to reconcile with the wife at this time. 

21. On 7 March 2003 the wife and child returned to the former matrimonial home. 

22. Sometime after March 2003, the husband met a woman on the internet and he communicated with her regularly.

23. In July 2005 the husband commenced sleeping in the study.  In the hearing before me on 11 February 2008, the husband stated that he had slept in the study some 8 years prior to the wife moving out of the house but I accept the wife’s version. 

24. In November 2005, the wife and child left the former matrimonial home.  The wife only took her personal possessions with her at this time.  The wife lived in rented accommodation initially paying $215 per week (between March 2005 and March 2007), and then paid $225 per week (between March 2007 and March 2008.)

25. In March 2008, the wife was paying rent of $260 per week.

Legal principles

1. In this matter, my task is to:

   58.1.Identify and value the property, assets, financial resources and liabilities of the parties;

   58.2.Identify relevant contributions and assess them;

   58.3.Consider relevant matters referred to in s 79(4)(d) to s 79(4)(g) of the Family Law Act 1975 (Cth); and

   58.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

Property, assets, financial resources and liabilities of the parties

1. A draft Balance Sheet that the Court was provided on 11 February 2008 (Exhibit “A”).  On 6 June 2008 both parties were legally represented.  I was provided with a copy of a balance sheet (which I have marked Exhibit “J”) in the following terms:

Ownership	Description	Wife’s value	Husband’s value
Assets
1.	Husband	Y property	730,000.00	730,000.00
2.	Husband	Lot 106, Tasmania	80,000.00	80,000.00
3.	Husband, Wife & Son	Lot 3, South Australia	75,000.00
4.	Husband, Wife & Son	Lot 4, South Australia	85,000.00	200,000.00
5.	Husband, Wife & Son	Lot 1, South Australia	85,000.00
6.	Wife	1/5 share Mauritius property	5,000.00	101,000.00
7.	Wife	Savings	NK
8.	Husband	Savings	NK	24,068.00
9.	Wife	Shares	4,143.37	4,143.37
10.	Husband	Shares	NK	4,967.40
11.	Husband	Term deposit	NK	26,250.00
12.	Wife	1995 Nissan Pulsar motor vehicle	5,000.00	5,000.00
13.	Husband	Motor vehicle	19,000.00	19,000.00
14.	Wife	Contents	730.00	NK
15.	Husband	Contents	10,000.00	2,000.00
16.	Wife	Jewellery and stamps	Nil	376,900.00
17.	Wife	Bungalow in Mauritius	NK	230,000.00
18.	Husband	Land at Lot 411, TAS	40,000.00	40,000.00
Liabilities
19.	Wife	Credit card	4,270.000	NK
20.	Husband	Credit card	NK	89.00
21.	Husband	Car registration	NK	560.86
22.	Husband	K rates	NK	892.00
23.	Husband	Medical expenses:  partner	NK	782.75
Superannuation
24.	Wife	AMP Flexible Lifetime	74,036.00	NK
25.	Husband	MLC	NK	804.13

1. As can be seen, the Balance Sheet handed to the Court on 6 June 2008 included an agreed value of B property at $730,000 (this is the figure ascribed to the property by Mr Y).  There was no indication by the husband at the final stage of the hearing that the husband resile from that agreed position.  In the event that the husband does not make a payment to the wife based on the agreed figures the B property will be sold. 

2. What the husband says about his most current estimate as to the value of properties in the Financial Statement which was filed on 27 January 2009 but not relied upon is as follows:

   61.1.The B property is assessed by him to have a value, for the husband, at nil.  He says that the B property is a “Family Trust House and place of work”.  Nothing that the husband has presented by way of evidence at the hearing would indicate that there was any substance in the assertion that some trust owned the property and, in any event, the husband had previously agreed on the value of the property.

   61.2.Lots 1, 3 and 4 at K were again assessed by him as having nil value to him because of:

   “request for family trust before Family Court of Australia”.

   61.3.The properties in Tasmania were assessed by him to have a value of $112,000.

   As all of this conflicts with the evidence or values to which the parties agreed, I have no regard to these statements made in this document. 

3. The property at Lot 106, Tasmania had always been agreed at a figure of $80,000 (see Exhibit “A”). 

4. The wife asserted that the respective values of Lot 1, Lot 4 and Lot 3 were $75,000, $85,000 and $85,000 (a total of $245,000).  The husband asserted in the draft Balance Sheet provided to the Court on 6 June 2008 that the value of one of the properties in K was worth $200,000 (Lot 4) but no figure was given for the other two.  In his most recent Financial Statement filed (the one of which the Court was unaware during the hearing) the husband indicated that these properties have no value to him. 

5. Everybody had agreed that these properties be sold.  On 28 August 2008 I made inter alia orders and a notation in the following terms:

   1.    The parties do all things and sign all necessary documents to join their son [C Krugar] in selling properties at Lots 3 and 4 [K], South Australia and Lot 1 [K], South Australia at a price to be agreed upon between the parties and failing agreement to be determined by an agent jointly agreed upon by the lawyers of the parties and [C Krugar].

   2.    The net proceeds of that sale after discharge of any encumbrances and the costs of sale be paid as to the one third to [C Krugar] and the remaining two thirds (the “funds”) to the trust account of the solicitors for the wife. 

   3.    Either party have liberty to restore this matter on 7 days notice if the parties cannot agree in writing in respect of the distribution of those funds.

   4.    …

   IT IS NOTED THAT:

   5.    I have indicated it is my preliminary view that the wife should have access to the funds for the purposes of her day to day living requirements and so that she is not financially disadvantaged as a result of the delay in the final hearing of this matter occasioned by the husband’s health in circumstances in where he continues to occupy the major asset of the parties at [B]. 

6. As at the date of the hearing, so far as I am aware, no sale of any South Australian property had taken place.

7. I do not have any formal valuation in relation to the K properties notwithstanding directions that have been made by me.  The parties have a two‑thirds interest in these properties, with C having the remaining one‑third interest.

8. I intend to confirm the order for the sale of the K properties and adopt in my analysis the wife’s estimate of value for those properties as the most reliable indication that I have as to what they might be worth.

9. The wife holds an interest in a property at Mauritius.  Directions that were made in relation to the parties arranging on a single expert were not complied with.  I, therefore, do not have any valuation evidence about the wife’s interest in the Mauritius property.  There is in evidence, a translation of the relevant documents by which the wife obtained that interest.  It is clear from those documents that she has a one-fifth interest in that property with her other siblings.  The wife estimated her interest in that property to be worth AUS $5,000.  Her estimate is based upon a document that she has obtained from a person who on the face of the document seems to have some qualification to express an opinion about the value of the property.  The wife otherwise gave evidence that the property is the family home of her relatives in Mauritius and she would not seek to interfere with their occupancy rights in relation to that property and she does not receive any income from the property.  In the circumstances, I do not think it is appropriate to include that property in the balance sheet for the purposes of determining a distribution of assets between the parties. 

10. The husband also asserted that the wife owns a bungalow in Mauritius worth approximately $230,000.  He has adduced no evidence to support that assertion.  The wife on her oath denied that she was the owner of any other property in Mauritius apart from the one that she jointly owns with her four siblings.  I accept the wife’s evidence about that.

11. Each of the parties had savings worth similar value at a previous point in time.  The wife’s Financial Statement filed 13 August 2008 indicated that her savings (which had an agreed value in February 2008 of $23,800 – Exhibit “A”) were now $5,082.  It was agreed that it would be unfair to the husband to rely upon that evidence whilst at the same time insisting on the agreed value in relation to his savings.  It was agreed that both lots of savings would be eliminated from the balance sheet.

12. There were two term deposits in the husband’s name, one in the sum of $25,000 and the other in the sum of $5,260.  The first term deposit was in existence at the date of separation and will be included in the balance sheet.  The second term deposit was the balance of what is left from retirement benefits that the husband received in 2006.  Whilst there is no specific evidence about it, I infer that part of those retirement benefits were in some way referable to his employment history when the parties were together.  Accordingly, the sum of $5,260.00 should be added to the balance sheet to be divided between the parties (the total term deposits being $30,260.00).

13. It is agreed that the wife has a motor vehicle worth $5,000 and the husband has a motor vehicle worth $19,000.00. 

14. It was agreed the wife’s contents are $730 and the husband’s contents have the value estimated by the husband at $2,000.

15. In relation to the jewellery and stamps (the list attached to the husband’s Response which he values at $376,900), on the evidence that I have, I am satisfied that the wife does not have any of those items.  The husband did make allegations to the police that the wife had stolen items.  The husband asserts that he at some point emailed the list that is attached to his Response to the police.  Police records have been subpoenaed.  The husband conceded that there is no reference in any documents subpoenaed from the police, which would support his contention that the police received the list.  On balance, I am satisfied that if any of the items on the list actually do exist, then they are not in the possession of the wife.  It would be unsafe to add these items to the balance sheet.

16. The draft Balance Sheet of 6 June 2008 has the wife with shares at an agreed value of $4,143.37.  The wife says that she has Telstra, SAI Global & IAG shares worth $6,910 (see the wife’s Financial Statement of 13 August 2009).  I will adopt the higher value.  The husband indicated in the draft balance sheet of 6 June 2008 that he had shares valued at $4,967.00 and I will adopt that figure. 

17. The husband has superannuation that had an agreed value of $70,431 (Exhibit A).  In the unread Financial Statement, there is a change downwards in the husband’s superannuation from its previously agreed figure to a figure of $54,600.  There is no explanation offered for the reduction and I accept the previously agreed higher figure.

18. The wife produced an updated document in relation to her superannuation which indicated its current value at $57,973 (Exhibit B).

19. Liabilities alleged by the husband are $892 for K rates and $782.75 for medical expenses for the husband’s partner.  I allow the liability for rates only. 

20. The orders sought by the wife indicate that there is still a mortgage registered on the B property.  So far as I am aware no amount is owing under the loan associated with that mortgage.  In the event that there is any money outstanding that will be the responsibility of the husband.

21. The husband in his sworn Financial Statement on 27 January 2009 has indicated that there are no outstanding monies under any mortgage.  The husband has been in the matrimonial home since the separation and if there are monies owing on that home then it would be appropriate for him to bear the responsibility of any debt (of which I assume there are none based on the husband’s sworn document).

22. The parties assert various liabilities in relation to credit card and other debts but none of those liabilities are clearly referable to debts that the parties had at the date of separation and there is insufficient evidence to allow me to add them to the Balance Sheet.  Accordingly, I do not include these items in my calculations.

23. Based on the above I find the assets and liabilities of the parties are as follows:

Ownership	Description	Value
Assets
1.	Husband	B property	730,000.00
2.	Husband	Lot 106, Tasmania	80,000.00
3.	Husband & Wife (2/3)	Lot 3 K, South Australia	50,000.00
4.	Husband & Wife (2/3)	Lot 4 K, South Australia	56,661.00
5.	Husband & Wife (2/3)	Lot 1 K, South Australia	56,661.00
6.	Wife	1/5 share Mauritius property	5,000.00
7.	Wife	Savings	Nil
8.	Husband	Savings	Nil
9.	Wife	Shares	6,910.00
10.	Husband	Shares	4,967.00
11.	Husband	Term deposit	30,260.00
12.	Wife	1995 Nissan Pulsar motor vehicle	5,000.00
13.	Husband	Motor vehicle	19,000.00
14.	Wife	Contents	730.00
15.	Husband	Contents	2,000.00
16.	Wife	Jewellery and stamps	Nil
17.	Wife	Bungalow in Mauritius	Nil
18.	Husband	Land at Lot 411, TAS	40,000.00
Superannuation
19.	Wife	AMP Flexible Lifetime	74,036.00
20.	Husband	Superannuation	70,431.00
Total assets			1,231,656.00
Liabilities
21.	Wife	Credit card	Nil
22.	Husband	Credit card	Nil
23.	Husband	Car registration	Nil
24.	Husband	K rates	892.00
25.	Husband	Medical expenses:  partner	Nil
Total net assets			1,230,764.00

Contributions of the parties

1. The parties were together for 22 years.  I am satisfied that each of them made a myriad of contributions during that time.

2. The husband had a significant initial contribution.  It was agreed (and there is valuation evidence to support the agreement) that he had equity of about $43,000  in the Sydney unit that he owned.  The parties moved into this unit at the date of their cohabitation in 1983.

3. It is the husband’s strong assertion that the wife made no direct financial contribution to the acquisition of any of the properties throughout the marriage.  The husband says he has been the one that’s always maintained the properties and his efforts are the reason why they currently exist.  It is primarily on this basis that he asserts that a division of 80 per cent in his favour based on contributions is appropriate. 

4. The wife concedes that apart from a lump sum of $11,000 which she had saved up and given to the husband for the purposes of acquiring property, she made no direct contributions to the payment of the mortgages or rates in respect of the Sydney NSW property or any properties acquired by the husband or the parties during the marriage.  The husband’s assertion is that he made far greater contributions to the acquisition of property than did the wife during the 22 years that they were together.  But the wife made significant contributions in other ways.

5. The wife did not work until after C’s birth and then she expended her income on the payment of groceries and household supplies, and on C’s expenses.

6. The husband’s work took him away from home for significant periods during the marriage and during those times the wife was responsible for C’s care without assistance from the husband.  As already mentioned, the wife was the primary homemaker and parent during the marriage.

7. During the period between September 2002 and March 2003, the wife looked after C without substantial support from the husband, although the husband made some payments to C directly.  

8. The wife jointly applied to the bank for a personal loan to assist the husband’s acquisition of the Lot 3 K property.

9. I find that the properties were put in the joint names of the parties by the husband so that tax and other advantages that arose from joint ownership would be available.

10. Since July 2005 the husband has had the benefit of occupancy of the B property whilst the wife has had to pay rent.  The husband asserted that the upkeep of the B property and the other properties were equal to or more than the amount of rent paid by the wife.  However, I have no evidence that that is so and I am unwilling to accept this assertion.

11. The husband submitted the time has passed and people should be able to get on with their lives.  That submission is consistent with his application, that there should be no alteration in how property is currently legally owned. I also infer that he was saying that contributions since separation should be considered.  However, I do not accept that, in this case, contributions made since separation in any way affect the wife’s right to seek an alteration of property from the Court.

12. I am prepared to give some minor recognition to the fact that the husband initially brought in an amount of $43,000 to the relationship.  Having regard to the wealth of other contributions that I find both parties made over a 22 year period that would lead to only a small adjustment of 1 per cent in the husband’s favour.

13. I conclude that based on contributions the division should be 51 per cent / 49 per cent in the husband’s favour.

MATTERS RELEVANT UNDER s 79(4)(d) - (g) FAMILY LAW ACT 1975

1. The wife sought no adjustment under s 79(4)(d) – (g) FLA. Her submission, which I accept, is that both parties are capable of working.

2. I have previously set out two medical certificates that were presented to the Court in support of adjournment applications which appear on their face to be relevant to the husband’s health.  One of them contains incorrect information that the husband had had heart bypass surgery.  The husband has given me information that during the time the matter has been before the Court he has had at least three overseas trips in 2008.  I have no evidence that would indicate how any medical condition the husband may or may not be suffering from affects his current earning capacity.  On the evidence that I have I must assume that the husband still has an ability to earn.

3. The husband that he had been asked on a number of occasions to produce financial particulars as to his present earning capacity.  On 28 October 2008 I made a direction that the husband obtain a current statement from his doctor as to his current medical condition and earning capacity but the husband failed to provide any evidence pursuant to that direction.

4. At the final stage of the hearing the husband produced a document (Exhibit “F”).  The husband inferred that that document had been lodged with the Australian Taxation Office.  An Income Tax Assessment Refund Notice issued on 11 November 2008 and is part of Exhibit “F”.  The document shows that in the financial year ended 30 June 2008 the husband received by way of gross income from “certification services” an amount of $63,718.  He also earned dividends on shares of $98.85 and interest on investments of $2,683.  His overseas work expenses were listed to be $22,410.  His net income was therefore $44,090.  He said that he had further business expenses of $50,543.  Those business expenses include claiming 80 per cent on the expenditure on the B property as a tax deductible expense.  The document shows that he had an overall loss for the year of $9,235 but that seems to be a mathematical error.  The loss is $6,453 ($50,543 - $44,090).  However, in the list of business expenses there is a “Director’s fee” allocation of $37,500.  This means that the document indicates that the husband’s income in the financial year ended 30 June 2008 was in the approximate sum of $31,047 ($37,500 - $6,453). 

5. The wife’s income reported in her Financial Statement filed 13 August 2008 was $884 gross per week, with personal expenditure of $1020. 

6. In the husband’s unread Financial Statement filed 27 January 2009, he states that he receives $787 total average weekly income; that he expends with personal expenditure of $440 and living expenses for his new partner and her child of approximately $151 per week; his total liabilities are $30,460 (made of expenses relating to legal fees); and that he has financial resources of $40,282 made up of directors fees and term deposit interest and share dividends. 

7. The husband submits that the wife currently has a good income, she is enjoying her life whilst he is still struggling to try and re-establish himself. I do not accept that submission. I accept the wife’s position that there is no evidence that would lead to the making of an adjustment pursuant to s 79(4)(d) to (g) FLA matters one way or the other.

Orders that are just & equitable

1. Based on findings of contributions and s 79(4)(d) to (g) matters, the result would be a 51 per cent /49 per cent split in the husband’s favour. I find that that is a just and equitable division of the parties’ assets.

2. That proportional division of assets could be achieved by distribution in the following way:

Husband gets - 51.0%
Assets
Item No.	Description	Percentage	Value
1	B property	100%	$730,000
2	Lot 106, Tasmania	50%	$40,000
3	Lot 3 K, South Australia	50%	$25,000
4	Lot 4 K, South Australia	50%	$28,331
5	Lot 1 K, South Australia	50%	$28,331
8	Savings	100%	$0
10	Shares	100%	$4,967
11	Term deposit	100%	$30,260
13	Motor vehicle	100%	$19,000
15	Contents	100%	$2,000
18	Land at Lot 411, TAS	50%	$20,000
20	Superannuation	100%	$70,431
Liabilities
Item No.	Description	Percentage	Value
24	K rates	100%	$892
H pays W			$369,737
Net Assets			$627,690
Wife gets - 49.0%
Assets
Item No.	Description	Percentage	Value
3	Lot 3, K, South Australia	50%	$25,000
4	Lot 4, K, South Australia	50%	$28,331
6	1/5 share Mauritius property	100%	$5,000
9	Shares	100%	$6,910
12	1995 Nissan Pulsar motor vehicle	100%	$5,000
14	Contents	100%	$730
16	jewellery and stamps	100%	$0
19	AMP Flexible Lifetime	100%	$74,036
5	Lot 1, K, South Australia	50%	$28,331
2	Lot 106, Tasmania	50%	$40,000
18	Land at Lot 411 Tasmania	50%	$20,000
W receives			$369,737
Net Assets			$603,074

1. Standing back I find that that is a just and equitable division of the parties’ assets.

Proposed Orders

1. I have some reservations about the husband’s willingness to co-operate in the sale of properties given statements that he has made during the hearing.  Also tendered in the trial also was Exhibit “I” which was a communication from a real estate agent in Tasmania indicating that that agent had strict instructions from the husband to only have communications with him regarding the property.      

1. I would agree to appoint, as requested by the wife, the agents nominated for the purposes of the sale of the three properties, HC Real Estate (see Exhibit “H”) for the South Australian properties and RT Real Estate for the Tasmanian properties (see Exhibit “I”).  I do not have any details as to whether or not Ray White would agree to the sale but I find that the wife will take a reasonable approach in respect of the sale.  I have indicated my reservations about the husband co-operating with the proposed sale of property and I will make an order as the wife seeks in respect of the appointment of the agent.

2. I make an order for equal division of the term deposits (in default payment from proceeds of the B property to the wife the Registrar should sign documents in default).  I accept also the wife’s submission that it would be appropriate for the husband to give vacant possession of the B property.  As I have said, I agree with the wife that it is likely, based on the way that he has conducted himself in these proceedings and the evidence before me, that the husband will not easily co-operate with orders for the sale of the properties.

3. I asked the husband, if I found a division of property which meant that there needed to be a sale of the B property, whether or not he would wish the opportunity to use his proceeds of B property to acquire the other properties from his wife and C.  He indicated that he did not wish to have that opportunity and that everything should be sold. 

4. Given the conclusions I have reached, the husband’s position is that he wants all real estate to be sold.  Although that is what he said, I intend to give the husband a limited opportunity to acquire the wife’s interest in the B property at the valuation for B property to which the parties had agreed.

5. If the B property is sold, then the wife will receive 50.6 per cent of the net proceeds of sale and the husband will receive 49 per cent ($369,737/$730,000 = 50.6 per cent). 

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  21 January 2010