plaintiff. The parties were ordered to transfer the Luxembourg account to the husband, and the wife was ordered to pay him $480,607 within two months. If she failed to pay, the E Road property was to be sold;...
Key principles
The Court applied the four-step approach to a property adjustment under s 79: identify and value the parties’ property, liabilities and financial resources; assess contributions...
The Court treated the Australian accounts and investments described as held for the child as assets of the parties on the evidence before it. Relevant matters included the wife’s...
The Court assessed contributions at separation as 56 per cent to the husband and 44 per cent to the wife, but assessed contributions by the hearing date as 56 per cent to the...
The Court made a further adjustment under s 75(2), particularly for the wife’s greater care of the child and the parties’ different future income circumstances, resulting in a 59...
Issues before the court
How should the parties’ property, liabilities and financial resources be identified and divided?
Were accounts and investments described as held for the child excluded from the parties’ property?
Plain English Summary
The Court divided the parties’ assets after considering what each brought into the relationship, their contributions during it, and their post-separation circumstances. The husband’s initial assets and income supported a contribution advantage at separation. By trial, the wife’s greater care of their daughter and her inheritance shifted the contribution assessment in her favour. Her health and inability to work, the husband’s pension income, and the continuing costs of caring for the child also supported a further adjustment. The Court did not accept that the disputed Australian accounts and investments were established trusts for the child, and included them in the property assessment. It ordered the wife to transfer the Luxembourg account and pay the husband a further sum. The reasons and the sale-proceeds order contain an apparent inconsistency about how much of any sale balance goes to the husband and the wife.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
How should initial, relationship and post-separation contributions be assessed?
What adjustment was appropriate under s 75(2), including the parties’ circumstances and care of their child?
Cited legislation
3 cited instruments linked from this judgment.
Deep Dive
2,154 words · generated 01/10/2026
What happened
In Lockie & Lockie [2009] FamCA 656, Le Poer Trench J determined a contested property adjustment after a relationship of about 14 years. The parties agreed that cohabitation began on or about 10 October 1986 and final separation occurred on or about 3 October 2000. There had been a period of separation between 1994 and 1996, although the parties disagreed about what that meant for their relationship and contributions.
The parties had a daughter, who was 14 at trial and had significant health issues. Parenting orders were agreed shortly before the property trial. The financial dispute nevertheless involved the child’s future costs, the parties’ respective contributions to her care, and accounts said to have been established for her benefit.
The property pool involved Australian and French real estate, bank accounts, investments, superannuation, French pension entitlements, legal costs, and funds and shares described as belonging to the child. The husband’s case emphasised his larger initial contributions, higher income, retirement payment and financial support to the family. The wife relied on her initial property and savings, homemaking and parenting, financial management, a personal injury compensation payment, her inheritance, and her post-separation care of the child.
A central dispute was whether accounts in the child’s name or described as held on trust for her should be excluded from the property pool. The Court found that the Australian accounts and investments described as the child’s trust were not established as separate trust assets on the evidence. It also included the Luxembourg account in the property adjustment. The Court ordered the Luxembourg account transferred to the husband and required the wife to pay him another $480,607 within two calendar months.
The Court’s final assessment gave the wife 59 per cent and the husband 41 per cent of the assets. It also ordered that the husband receive his pre-cohabitation furniture and personal items. If the wife did not pay the additional sum, the E Road property was to be sold.
Why the court decided this way
The Court followed the four-step approach it set out for s 79: identify and value the parties’ property, liabilities and financial resources; assess contributions; consider relevant s 75(2) matters; and decide whether the outcome is just and equitable. It also described the global and asset-by-asset approaches as legitimate alternatives, referring to Norbis v Norbis.
The contributions analysis changed over time. The husband’s initial contributions were found to be considerably greater. They included property interests, savings, shares, investment interests and pension interests. The wife also brought significant assets, including cash, shares, superannuation and an interest in the E Road property. The Court accepted that the husband’s income was much greater but considered that some of his salary package and resources were used to support his former wife and daughter.
During the relationship, the wife made most of the homemaking and parenting contributions, and played a significant role managing the family’s finances. The husband’s contributions in those areas were also significant and not merely token. The Court did not accept the wife’s assertion that her role in the husband’s career was substantial, although it accepted that she provided some support and companionship during work travel and occasional business entertaining.
The Court also considered substantial payments made by the husband for his former wife and daughter, as well as the costs of maintaining French property jointly owned with his former wife. It found those payments significantly affected the assessment of his contribution to the relationship with Ms Lockie.
At separation, contributions were assessed 56 per cent to the husband and 44 per cent to the wife, largely because of the husband’s greater initial contributions. By the hearing, the balance had shifted. The wife had been the predominant carer of the parties’ daughter since separation, and she had inherited a substantial interest in the E Road property. The Court assessed contributions at that point as 56 per cent to the wife and 44 per cent to the husband.
The Court then considered s 75(2). The wife had no reasonable capacity to work for remuneration, based on the medical evidence accepted by the Court. The husband was retired and received a French pension. The wife had the major share of the child’s care and was expected to continue making substantial contributions to the child’s support. The husband paid $900 per month in child support, but had not paid the child’s private school fees. The Court treated the differences in future income and care responsibilities as significant. It concluded that a further adjustment produced a 59:41 division to the wife and was just and equitable.
The alleged child trust assets were treated as parties’ assets because the evidence did not persuade the Court that separate trusts had been established and administered. The wife controlled and could access the Australian funds, had withdrawn $40,000 and transferred shares of equivalent value, and returned income generated in Australia in her own tax returns. The Court also noted the lack of a written trust deed and the incomplete evidence about the source of the funds. It excluded a separate $613 Commonwealth Bank account from the balance sheet because it considered that account potentially different and was concerned about the effect of including it on the parties’ relationship with their daughter.
Before and after state of the law
The judgment did not announce a new statutory test. It applied the established s 79 framework described in Ferraro, McLay, Hickey and Norbis. The Court’s account of Norbis was that the global and asset-by-asset methods are both legitimate, and choosing the asset-by-asset method does not, by itself, amount to an error of law. The judgment notes that the global method was the more common practice in the Family Court.
The decision’s significance in its own facts lies in the application of the statutory framework to a complex pool and an evidentiary dispute about funds labelled as belonging to a child. It demonstrates that an account name or stated purpose was not treated as conclusive in this case. The Court considered the practical control and use of the funds, tax reporting, documentation and evidence of their source.
The Court also considered s 85A as a possible alternative if a trust had been established. It said that an established trust might fall within the category of settlements capable of being dealt with under that section. Its primary conclusion, however, was that the alleged trusts were not established on the evidence. The judgment therefore should not be read as finally determining every question that might arise under s 85A or as a general ruling about all child-designated accounts.
The statutory provisions discussed were those set out in the judgment: ss 79, 75(2) and 85A of the Family Law Act 1975 (Cth), along with the child-support factor incorporated into the property analysis. This account describes the law as stated and applied in the 2009 judgment, rather than updating it with later amendments or authorities not included in the supplied text.
Key passages with plain-English translation
The judgment says a s 79 application requires a “four step process”. In plain English, the Court first works out the property and financial resources, then assesses contributions, then considers relevant personal and financial circumstances, and finally checks whether the proposed result is fair in all the circumstances.
On the alleged trust, the Court said: “Clearly, naming an account as a trust account is just one part of the evidence which needs to be taken into consideration in determining whether a trust actually exists or not.” In other words, the account label mattered, but the Court also looked at how the money was controlled, used and reported for tax purposes, and whether the evidence established a trust arrangement.
The Court explained that contributions favoured the husband at separation “largely because of the considerably greater initial contributions”. That was not the final contribution assessment. The Court separately considered events after separation, including the wife’s care of the child and inheritance.
By trial, the Court assessed contributions as “56% to the wife and 44% to the husband”. It then made an additional adjustment under s 75(2), particularly because of the wife’s greater care of the child and the difference between their future income circumstances. The final asset division was 59 per cent to the wife and 41 per cent to the husband.
The judgment also said that the cost of the child’s care was a relevant matter under s 75(2), while taking into account the child support paid by the husband. That indicates the Court considered both the financial support already being paid and the wife’s broader care and expense responsibilities.
There is an important textual issue in the sale order. The reasons say that, if the E Road property were sold, the husband should receive 83.5 per cent of the net proceeds and the wife the balance. The written order first says the husband receives 83.5 per cent, but then says “the balance thereafter to the husband” as well. On the face of the supplied text, those directions conflict. This is an observation about the judgment’s wording, not a conclusion about how the order would be construed or implemented.
What fact patterns trigger this precedent
The judgment is most closely relevant to fact patterns involving a property adjustment under s 79 where parties dispute the size and nature of the property pool, initial contributions, and post-separation contributions. It gives a worked example of contributions being assessed at separation and then reassessed by the hearing date, rather than treating the separation-date position as the whole analysis.
It is also relevant to disputes where assets are held in a child’s name or described as being held “in trust” for a child, but one or both parents retain practical control. The Court’s reasoning turned on this case’s evidence: access to and use of the funds, lack of a written trust instrument, tax treatment, and gaps in tracing the source of assets. Those circumstances should not be converted into an automatic rule that every child-labelled account belongs to the parents or that every account title is ineffective.
Other fact patterns reflected in the judgment include one party having substantially greater initial property, one party undertaking most of the post-separation care of a child with health needs, material differences in work capacity and pension income, and a party having a new cohabiting relationship whose financial circumstances may be relevant. The Court’s treatment of payments to a former spouse and child may also be relevant where those obligations affected the income actually available to the later relationship.
The case was a first-instance decision applying the statutory provisions to its evidence. Its fact-sensitive assessments, including percentages and findings about credibility, are not a formula for other cases.
How later courts have treated it
The supplied judgment contains no later judgments discussing or applying Lockie & Lockie. It is therefore not possible, on the available material, to describe how later courts have treated it, whether they have followed or distinguished it, or whether any part of its reasoning has been reconsidered.
Within this judgment, the authorities referred to for the general s 79 method are Ferraro and Ferraro, McLay and McLay, Hickey and Hickey, and Norbis v Norbis. The judgment explains the global and asset-by-asset approaches by reference to Norbis. It also lists Commissioner of Stamp Duties (Qld) v Jolliffe and Kauter v Hilton in a footnote to the husband’s submission about trust principles, and refers to Parshen v Parsen and Meller v Meller in submissions. Their appearance in the record should not be treated as equivalent to a detailed ruling in this judgment adopting every proposition advanced by counsel.
Still-open questions
The judgment itself identifies unresolved questions about any alleged Luxembourg trust, including what law governed it and where, if anywhere, it was created. It also asks whether an established trust would be a post-nuptial settlement under s 85A. The Court’s comments on those possibilities were conditional; its primary finding was that the alleged trusts were not established on the evidence.
The judgment does not provide a general test for distinguishing a genuine trust for a child from an account that parents have designated for the child while retaining control. Its reasoning is evidentiary and depends on the particular facts. The source also does not establish how a later court would treat comparable arrangements involving formal trust deeds, independent trustees, separate tax returns, or clearer records tracing gifts and contributions.
A further practical issue arises from the inconsistent sale-proceeds wording between the reasons and the formal order. The reasons describe the wife receiving the balance after the husband’s 83.5 per cent share, while the formal order appears to direct the remaining balance to the husband. The supplied material does not show how that discrepancy was resolved.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
FAMILY LAW - PROPERTY - Section 75(2) - Initial contributions of the parties - Assets allegedly held on trust for the child of the marriage - Wife's contribution to the earning capacity of the husband - Payments made by husband to his former wife and child - Future costs of care of the child - Whether husband's de facto constitutes a financial resource
(1) The parties are to forthwith do all things necessary to transfer to the husband the Credit Agricole Luxembourg bank account (standing at $236,489 on the balance sheet) being the account in the name of the parties' child and being held in Fixed Yield Deposit Account number ... in Credit Agricole Luxembourg.
(2) Within two calendar months from the date hereof the wife is to pay the husband the sum of $480,607.
(3) In the event of the wife failing to make the payment to the husband as required by Order 2 hereof then forthwith upon the occurrence of such failure the parties are to jointly sell the property at E Road, northern Sydney ("the [E] Road property") through an agreed real estate agent and at an agreed sale price. The parties are to jointly appoint a solicitor or conveyancing firm to act for them on the sale. The parties are to ensure that the solicitor or conveyancer acting on the sale is provided with a copy of these orders. Each party has liberty to apply for further orders implementing the order for sale.
(4) Upon a sale being effected of the E Road property the parties are to cause the sale proceeds to be paid as follows:
(i) Payment of sale expenses;
(ii) discharge of the mortgage;
(iii) payment to the husband of 83.5% of the balance then remaining;
(iv) The balance thereafter to the husband.
(5) Each party has liberty to apply to seek further orders necessary to implement these orders.
(6) The wife is to cause to be delivered to the husband at H Street, northern Sydney ("the [H] Street property") all his furniture and personal items which were acquired by the husband prior to the cohabitation. Thereafter the balance of the contents of the property is to be the wife's.
(7) Each party otherwise be declared the absolute owner of any asset, resource, and superannuation in their possession and control standing in that party's name.
[7]
IT IS NOTED that publication of this judgment under the pseudonym Lockie & Lockie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
[8]
The applicant husband and the respondent wife cohabited for about 14 years. They did, by any measure, live an exciting and comfortable life largely arising as a consequence of the husband's employment as an international company executive. They travelled to many countries. Whenever they travelled it was first or business class. They always stayed in 4 or 5 star hotels.
The parties have one child and they had been in dispute about the orders relating to that child until a day or so before the trial when, with the assistance of the Independent Children's Lawyer, they were able to reach an agreement. Their child was 14 years of age at trial and has had significant health issues. She has now just turned 15.
Both parties have created bank accounts which they claim contain monies for the child. The wife has refused to use any of her funds in the Australian bank accounts (said to be held in trust for the child) to pay the child's school fees whilst at the same time requesting the husband to pay the child's school fees from the account the parties hold for the child in a Luxembourg bank. The husband opposes the child attending a private school on the basis that the parties cannot afford to pay private school fees. The husband voluntarily pays child support for the child in the sum of about $900 per month.
This case has taken much more judicial management to have it reach a stage where it is ready to be allocated a hearing date than most cases of the same complexity. The record shows that on 16 December 2005 a direction was made by Registrar Cameron requiring both parties to file their affidavit evidence by 20 February 2006. The husband complied with that direction. Further directions were made on 22 February 2006, 31 May 2006, 16 June 2006, 18 July 2006, 13 October 2006 and 23 November 2006. On each occasion a direction was made either specifically for the wife to file her evidence in chief or alternatively, for both parties to file affidavit evidence. On 12 January 2007 the matter was again in a "Defaulters List" and was transferred to my list as I was, at that time, the Case Management Judge. Directions were made by me on 19 January 2007, 1 March 2007, 5 April 2007, 5 June 2007, 27 June 2007, 18 July 2007 and on 11 September 2007. On each of those occasions (other than the last date), an order was made for the wife to file her affidavit evidence. Other orders were made on those occasions which were necessary to obtain relevant evidence either in relation to the children's matter or the property matter. On 11 September 2007 I noted the wife had still not filed her affidavit evidence. The matter was before me again on 22 November 2007. The wife had not filed her evidence. The matter was adjourned to 17 December 2007 for possible hearing as an undefended hearing. On that day (17 December 2007) the wife filed her affidavit and Financial Statement. The matter came before me on 21 May 2008. I had no hearing dates to allocate to the case within a three month period from that date. As a special event I reserved for the parties five days of hearing time before me commencing on 10 November 2008. On 21 May, 18 August and 20 October 2008 I made directions designed to have the matter ready to commence a hearing on 10 November 2008. The directions made on 18 August 2008 provided for the parties to be able to issue subpoenas returnable at a time prior to the commencement of the hearing.
[9]
That the Mother and the Father have equal shared parental responsibility for the child of the marriage [...] born [...] July 1994 ('[the child]').
[10]
That [the child] shall spend significant and substantial time with the Father as follows:
[11]
On alternate weekends from the conclusion of school on Thursday until the commencement of school on Monday, or Tuesday in the event of a long weekend or pupil free day. On these weekends the Father shall ensure that [the child] does not spend more than two hours each way travelling in a motor vehicle.
[12]
For half of each of the midyear school holidays, the first half in odd years, and thereafter in alternate years, the second half in even years and thereafter in alternate years.
[13]
(c) For two separate two-week periods in each year during the December/January school holidays, by agreement, and failing such agreement:
[14]
1. the last two weeks in each December and each January commencing in even numbered years; and
[15]
2. the first two weeks in each December and each January commencing in odd numbered years.
[16]
(d) On Father's Day each year if [the child] is not ordinarily with the Father, from 9.00 am on Father's Day until the commencement of school or 9.00 am the following day.
[17]
(e) On [the child's] birthday each year as agreed, otherwise from 10.00 am to 3.00 pm.
[18]
(f) On 17 November 2007 and on 1 November 2007 as agreed; failing agreement, if a school day, from the conclusion of school until 8 30 pm; if not a school day from 10 am until 9 pm.
[19]
(g) On the Father's birthday, the [...] by agreement, failing agreement from 10.00 am until 3.00 pm.
[20]
(i) In respect of Christmas Day [the child] shall spend time with the mother and the father as follows:
[21]
1. with the mother from 3.00 pm on 24 December until 3.00 pm on 25 December in even numbered years; and
[22]
2. with the father from 3.00 pm on 24 December until 3.00 pm on 25 December in odd numbered years.
[23]
Paragraph 3 of these Orders shall be suspended at the following times:
[24]
(a) On Mother's Day when [the child] shall be with the Mother from 9.00 am until the commencement of school or 9.00 am the following day; and
[25]
(b) On [...], the Mother's birthday when [the child] shall be with her Mother from 9.00 am until 3.00 pm.
[26]
The Father shall facilitate [the child's] attendance at reasonable social and extra-curricular activities that take place at those times that [the child] is in his care.
[27]
(i) The Father agrees to facilitate arrangements for [the child's] friends to attend at his home at those times that [the child] is present.
[28]
(ii) The Father shall be at liberty to take [the child] to his home at [coastal New South Wales] when [the child] is spending time with him during school holidays.
[29]
The mother shall have responsibility for making decisions about non-long term issues in relation to [the child] whilst [the child] is in her care.
The father shall have responsibility for making decisions about non-long term issues in relation to [the child] whilst [the child] is in his care.
Each of the parties shall have liberal telephone and any other electronic form of contact with [the child] whilst she is in the care of the other parent.
In the event that either party proposes to take [the child] overseas, they shall provide the other party with a copy of their itinerary and with an appropriate contact telephone number 7 days prior to such trip commencing; at these times the child shall be accompanied by the parent with whom she is travelling.
Neither party shall denigrate the other party nor any member of the other party's family in the presence or hearing of [the child] and they shall use their best endeavours to ensure that no other person does so.
The parties shall communicate with each other in relation to any changes to these Orders by email and they shall use their best endeavours to be courteous to the other party during the course of such communication. The parties agree that [the child] is not to be involved in these negotiations.
The parties shall continue with the family therapy that has been arranged through the Royal North Shore Hospital and they shall continue to so attend for as long as [the child's] therapist deems it appropriate.
Each party shall administer any medical treatment or other medication as may be prescribed for [the child] from time to time.
Each party shall notify the other, as soon as practicable, of any medical or other emergency concerning [the child].
The Father shall provide at least 48 hours notice to the mother in the event that he is unable to spend time with [the child] in accordance with these Orders during school term and otherwise with at least seven (7) days notice.
The Father shall collect [the child] at the commencement of each period when she is to spend time with him in accordance with these Orders and the mother shall collect [the child] at the conclusion of each such period, provided the Father shall take [the child] to school if such period concludes at the commencement of school and the Father shall collect and return [the child] if she is to spend time with him other than at his apartment in [Sydney].
[30]
The husband moved on his Amended Application for Final Orders filed 9 February 2007. The husband sought the wife pay him $900,000 and that he receive the funds in the account held at Credit Lyonnais, account number ... and held in the child's name ("the Luxembourg account"). He sought that the Australian properties be retained by the wife together with all of the funds held for the child in Australian bank accounts and shares.
The wife relied on her Amended Response to an Application for Final Orders filed 5 August 2007. She sought that each party be declared the owner of property standing in their sole names. The exception was that the wife said the husband was to receive items of furniture which were his prior to cohabitation.
[31]
On the second day of the trial the parties tendered the following document which was marked as Exhibit X2. They had provided another version of this document on the first day of the trial; however, I required further detail.
[32]
ISSUES OF FACT TO BE DETERMINED BY TRIAL JUDGE IN RELATION TO THE FINANCIAL MATTERS
[33]
Pursuant to Order 6 of the Orders of Justice Le Poer Trench made on 20 October 2008 ("the Orders"), the parties set out hereunder a list of issues of fact to be determined by the Trial Judge in relation to the financial matters:
[34]
1. Date of commencement of cohabitation and date of final separation.
[35]
Initial contributions - values of assets, extent of liabilities, wife's motor vehicles, and husband's bank savings.
Extent of homemaking and parenting contributions of each party, and wife's contributions to the management of finances.
Extent of wife's contribution to husband's earning capacity and support for him in his career at [Z International Company].
[36]
5. Incomes of the parties during the marriage and after separation.
[37]
Source and ownership of assets in [the child's] name and assets allegedly held by wife and or husband on trust for [the child].
Whether the parties were "separated" between July 1994 and December 1996.
Disposition of funds by Husband post separation and the extent of funds presently held by him in bank accounts and disposition of funds by Wife post separation.
Payments made by husband to or for the benefit of [R Lockie] and [H Lockie].
Extent of payments made by the husband to maintain the French properties during cohabitation.
Extent of past and future care and financial support of [the child] after separation.
[38]
13. Extent of husband's investments at separation.
[39]
14. The health of the parties and the Wife's capacity to work.
[40]
The husband's absences from Australia, both during the marriage and subsequent to separation and the source of funds for those trips and the source of funds relied on by the husband during those trips.
The assets, liabilities and resources of the husband's de facto partner, [Ms A], and the extent to which the husband has contributed to same and/or the extent to which Ms [A's] assets, liabilities and resources constitute a financial resource to the husband.
The funds required by the wife to provide her with an appropriate level of income to meet her expenses and the payment of expenses for [the child] including her private school fees.
Whether notwithstanding the husband's payment of child support at the appropriate rate under the legislation, the cost of care is a relevant factor for consideration.
[41]
On 10 November 2008 the parties tendered a document which was marked as Exhibit X1. I here incorporate that document:
[42]
The paragraph and Exhibit numbers are for reference only and do not indicate an agreement as to all the facts therein.
[43]
Affidavit of [the husband] sworn 19 February 2006 and filed 20 February 2006 ("Husband's Affidavit") at paragraph 2
[44]
Husband obtains employment with subsidiary of [Z Company]
[45]
Husband's Affidavit at paragraph 15 (d) and Exhibit 4
[46]
Paragraph 26 of wife's Affidavit sworn 17 December 2007
[47]
Husband purchases real property in [...] called "[the Island property]"
[48]
Paragraph 26 of wife's Affidavit sworn 17 December 2007
[49]
Husband promoted to General Manager for [Z Company, Country A]
[50]
Husband marries former wife, [R Lockie] in [the Island]
[51]
Husband purchases [L] property in France jointly with [R Lockie]. A third part of the property was purchased in 1984.
[52]
Husband's Affidavit at paragraph 15 (e) and Exhibit 5
[53]
Paragraph 26 and 35 of wife's Affidavit sworn 17 December 2007
[54]
Husband appointed General Manager for [Z Company, Country B]
[55]
[H Lockie] born out of marriage with [R]. Presently 29 years of age
[56]
Husband inherits an interest in [E] and [C] properties in France on father's death subject to a "userfracht".
[57]
Husband's Affidavit at paragraph 15 (c) and Exhibit RGL 3
[58]
Husband meets Wife again by chance in Sydney. Between 1983 and 1985 Husband spends brief interludes with Wife and travel on holidays
[59]
Husband appointed General Manager [Z Company] for Australia
[60]
Husband moves to Sydney with [R] and daughter, [H]
[61]
Husband separates from [R] to reside in rented accommodation with Wife [in northern Sydney] paid for by Husband.
[62]
Husband opens account for [H] with Société Generale in Paris
[63]
Husband's Affidavit at paragraph 15 (b) and Exhibit RGL 2
[64]
Parties purchase [N Street, inner Sydney] property for $120,500 in Wife's name but holds 50% on trust for Husband. Husband contributed $25,250 and wife borrowed $70,000.
[65]
Husband appointed General Manager for [Z Company] France
[66]
Husband's Affidavit at paragraphs 29, 30 and 31 and Exhibits RGL 8, 9 and 10
[67]
Husband's Affidavit at paragraph 35 and 31 and Exhibit RGL 12
[68]
Husband's Affidavit at paragraphs 10, 38, 39, 40 and 41 and Exhibit RGL 15
[69]
Husband sells [the Island property] for approx [...] (Aus $183,790.00). Proceeds of Sale placed in [T] Trust
[70]
Husband's Affidavit at paragraph 15 (a) and (b) and Exhibit RGL 1
[71]
Husband causes proceeds of sale of [Island property] to be transferred from [Island bank] to joint account at Société Generale in London
[72]
Husband's Affidavit at paragraphs 45 and 151 and Exhibit RGL 17
[73]
Husband transferred to Paris following [merger of Z Company and Z International]
[74]
Husband transfers proceeds of [Island property] to [T] Trust
[75]
[R] commences enforcement proceedings against Husband in France.
[76]
Husband's Affidavit at paragraphs 49 and 50 and Exhibit RGL 18a and 18b
[77]
Husband causes [T] Trust to open account with Société Generale in London
[78]
[Parties' child] born in Sydney out of marriage to Wife. Wife diagnosed with diabetes and remains in Sydney. Husband resided in France until December 1996 but visited regularly and provided monthly financial support.
[79]
Husband's Affidavit at paragraphs 12, 58, 59, 60 and 61
[80]
Husband causes [H's] beneficial interest in [T] Trust to be split equally with [the parties' child]. Wife beneficiary as to balance
[81]
Husband uses [T] Trust funds to discharge mortgage on [N Street] property
[82]
Husband's Affidavit at paragraphs 68 and 69 and Exhibit RGL 30a and 30b
[83]
Husband executes new Trust Deed for [T] Trust to give effect to earlier changes
[84]
Husband opens two [...] Life Assurance Investment Funds with Société Generale_._ Monthly deposits from Joint Credit Lyonnais account
[85]
Wife has car accident, commences litigation and in 1999 receives approx $147,000 in compensation
[86]
Paragraphs 142, 143, 144 and 145 of the wife's Affidavit sworn 17 December 2007
[87]
Husband conducts inquiry into balance of all accounts held with Société Generale: FF766,346 (Aus$185,970)
[88]
Husband returns to live with wife and [child] at father's home at [northern Sydney].
[89]
Paragraph 151 of the wife's Affidavit sworn 17 December 2007
[90]
Husband receives lump sum placed in a Credit Lyonnais joint account
[91]
Husband's Affidavit at paragraph 79 (a) and (b) and Exhibit RGL 37
[92]
For the duration of the marriage neither party is employed
[93]
Husband transfers FF978,000 (Aus$230,916) to Credit Lyonnais in Luxemburg
[94]
Parties purchase [H Street] property for $600,000 subject to mortgage to Westpac.
[95]
Husband's Affidavit at paragraphs 94 , 95 (a) and (b), 96, 97 and 98 and
[96]
Parties establish account in [child's] name at Credit Lyonnais
[97]
Paragraph 233 of the wife's Affidavit sworn 17 December 2007
[98]
Husband's Affidavit at paragraphs 100, 101, 102, 103 and 104
[99]
Husband opens Westpac account in Australia and obtains MasterCard
[100]
Following separation Husband pays Wife informal child support of $1,400 per month later reduced to $900 per month
[101]
Husband's Affidavit at paragraphs 127 to 128 and Exhibit RGL 48
[102]
Husband authorises approx. Aus$10,014 to be transferred to Wife's account from Paris Credit Lyonnais account
[103]
Husband transfers funds in [P] 1 and 2 to his account with Credit Agricole in [a town in] France (Aus$45,822)
[104]
Husband purchases shares in French companies for Aus$26785 using [P] 1 and 2 funds. Part of share portfolio
[105]
Wife's father passes away. Wife inherits father's interest in [northern Sydney]. Remainder held by her brother. Wife and [parties' also inherit funds. Wife subsequently purchases brother's interest as well.
[106]
Husband's Affidavit at paragraphs 135, 136 and 143 (b)
[107]
Paragraph 197 of the wife's Affidavit sworn 17 December 2007
[108]
Husband purchases [U Street] property for $432,000 subject to a borrowing from Westpac
[109]
Husband's Affidavit at paragraphs 137 and 138 and Exhibit RGL 55
[110]
Husband commences relationship with [Ms A] and subsequently moves to [coastal New South Wales] to reside with her but frequently visits Sydney and stays at [U Street]
[111]
Husband and [Ms A] enter into Cohabitation Agreement
[112]
The wife says that the parties resided at an apartment of the wife's friend from 12 October 1986 to 14 November 1986 (paragraph 77 of the wife's affidavit sworn 17 December 2007). Between 14 November 1986 and 18 February 1987 the parties lived with the wife's parents at E Road, northern Sydney ("the [E] Road property") before renting an apartment between 18 February 1987 and May 1987 (paragraphs 78-79 of the wife's affidavit). I accept that evidence.
The parties agree that an apartment at N Street, inner Sydney ("the [N Street] property") was purchased in about May 1987. It is further agreed that although the N Street property was purchased in the wife's name she held her interest in the property upon trust for the parties equally. It is agreed that the parties contributed equally (capital contribution) to the purchase. The wife, however, claims an additional contribution which is associated with her employment at the time of the purchase and probably the reason the property was acquired in her name. The wife obtained a preferential mortgage rate from her employer in relation to the loan advanced. The evidence supports that such advance was at a discounted rate. In cross-examination the wife agreed that the rate she paid was 6% whereas the market rate at the time was 16%.
In 1998 the parties sold the N Street property for $335,000 and the net proceeds of sale of $300,067 were used to reduce the mortgage on the property at H Street, northern Sydney ("the [H] Street property") (paragraph 104 of the wife's affidavit). I accept that evidence.
As at the date of final separation, the husband contends that he owned the following property (see paragraph 119 of the husband's affidavit sworn 19 February 2006 and filed 20 February 2006):
[113]
The E property in France the subject of the "userfracht" in favour of his mother. The husband estimates as at the date of separation the value of his interest in the property to be around 120,000FF (€18,292 or AUD$29,314);
2. The Porsche coupe purchased from his brother in 1968 that is garaged and in need of a great number of repairs. He says that it has not been properly driven for the last 20 years;
[114]
A 50% interest in the property known as L property in France ("the [L] property") which he purchased jointly with his former wife (R Lockie). He says they each still own the property in equal shares but that the buildings on the property are in a state of disrepair;
[115]
A number of European bank accounts which are either in his sole name or in the joint names of himself and the wife. The husband says that if only half of the total of each of the joint bank accounts is taken as being his funds, his share of the funds in the accounts totalled approximately $188,993 as at separation;
2. As at 1 October 2000 the husband says the value of his investment with the P 1 scheme was approximately €17,913.99 (AUD$29,295) and in the P 2 scheme was approximately €5,691.74 (AUD$9,308);
3. The combined funds in the T Trust which were approximately €1,484.29 (AUD$2,378), 119.13FF (AUD$29.10) and €149,524 (AUD$239,622) and in the Walker Crips account of approximately $3,323;
4. Personal items and furniture and some of the husband's possessions remained in the possession of the wife.
5. Accumulated points in his pension funds:
[116]
ARRCO (5075.97 points)
2. AGIRC (85003 points)
[117]
CRAM and CRAMIF, for which the husband does not provide figures for accumulated points
As at the date of separation the husband contends that the wife had the following property (see paragraph 119 of the husband's affidavit sworn 19 February 2006 and filed 20 February 2006):
[118]
A Toyota Corolla worth about $10,000;
2. A portion of her parent's property in northern Sydney which she has subsequently acquired in whole (presumably the E Road property);
[119]
Superannuation, of which the husband is unclear of the amount;
[120]
Australian share portfolio
2. Bank accounts in the wife's sole name, in the child's name, and held jointly with the husband. He is unclear of the funds in those accounts;
3. An unencumbered property at H Street, northern Sydney, which is in the wife's sole name;
4. Personal effect and furniture, of an unknown value;
5. Other property of which the husband may not be aware.
Although the parties are relatively agreed as to the identity of the assets at the date of separation there is issue as to value and what has happened with some of the investments (chiefly the husband's) since the separation.
[121]
The husband denied that he currently lives for more than six months of the year in France. Since the separation, in only one year has he lived for more than six months in France.
The husband conceded that he may have lived at the E Road property with the wife commencing in July 1985 and until September 1985. He said his memory was not good enough to recall. He thought he and the wife had lived in J Road, northern Sydney in about April 1985. I note there is an agreed fact in Exhibit X1 as follows: "28 April to 27 July 1985 Husband separates from [R Lockie] to reside in rented accommodation with Wife at [northern Sydney] paid for by Husband"
The husband agreed he could have moved to an apartment provided by Z Company with his former wife R in September 1985. He further agreed that he could have lived there until October 1986. He was unable to disagree with the proposition that on 10 October 1986 he moved to live with the wife. In other evidence, the husband had contended that cohabitation commenced in February 1987.
The husband was shown a copy of his divorce application, filed in the Court in 1990, in relation to the dissolution of his marriage with R. He noted that on page 4 of the document he asserted the date of separation to be 10 October 1986. He further noted that in paragraph 7 on page 4 he had asserted that since 10 October 1986 he had remained separated from R.
The husband confirmed that when he lived with the wife at the E Road property in 1987 he did not pay any rent. He agreed it could have been 1987 when he lived with the wife in T Street.
He further agreed that in May 1987 he moved to N Street with the wife.
In relation to paragraph 15 of his affidavit he was asked what he meant by the phrase "commencement of my relationship". He agreed that it meant when he commenced to live permanently with the wife in these proceedings.
The husband was taken to paragraph 15(g) of his affidavit. He was asked what point of time that paragraph related to and he replied, 1987. He was unable to be any more specific. He agreed that in 1986 and 1987 he bought shares in his former wife's name. He had paid for the shares; however, they were in his former wife's name. The shares were acquired largely with borrowed funds. He agreed that in October 1986 he had a debt of $142,703 arising from the purchase of shares. As will be seen later in these reasons, the wife submits that the husband did not establish that the shares which were held in his former wife's name at the time of the cohabitation were in fact beneficially owned by him. I accept on the totality of the evidence about these shares, their sale and the use of the sale proceeds that the husband did receive the benefit of the sale proceeds when the shares were sold.
[122]
In order to avoid double taxation of my pension, I travel frequently to France and spend several months residing there at a time. I have to spend less than six months residing in Australia per year in order to avoid being taxed by both the Australian Government and the French Government. [...].
[123]
The husband confirmed the contents of that paragraph were true. That evidence appears to be contradicted by other oral evidence given by the husband. He told me in answer to a question I asked him that he had not filed a tax return in Australia since 1990. He pays taxation on his pension in France. He has made no inquiries with the Australian Taxation Office or otherwise as to whether he is required to pay tax in Australia on the receipt of his pension.
[124]
The husband said that both he and Ms A receive a discount on travel costs, however the discount is different for each of them.
The husband conceded that following separation from his former wife R he purchased a motor vehicle for her use. The vehicle was financed in the sum of $9,600. It was payable over a period of five years. For some period of time the husband paid instalments and then paid out the balance of $8,304 on 20 October 1989. The reference to acquiring a motor vehicle for his former wife was set out at paragraph 28 of his affidavit. He was asked further in relation to that paragraph how long he had paid his former wife $3,000 per month following his separation from her. He said, "not very long". He said there were documents he had which showed how long it was. The travel to Australia by the husband referred to in paragraph 28 (he said he would visit Australia frequently) was free travel for the husband. He said the respondent wife usually accompanied him on those trips.
The husband agreed he had paid school fees for H following the separation from his former wife. However, he said that she won a scholarship which covered the expenses. That scholarship was at a private School in Sydney. He agreed that in 1990 he could have still been paying tuition fees for H.
He confirmed that in December 2000 he paid his former wife R Lockie 200,000FF. He further agreed that he has no further legal debt to R, however, he regards himself as morally bound to pay her that which he had promised, namely approximately AUD$200,000.
The husband agreed that following commencement of his cohabitation with the respondent wife some 14,400FF per annum was paid to an account in France for R and H. Further in 1986 a portion of the husband's salary continued to be paid to a joint account with his former wife R in France.
It was agreed by the husband that in December 2000 he entered into an agreement with R which settled their property disputes so that neither had a claim against the other.
During the cohabitation with the respondent wife the husband conceded he paid expenses in relation to the L property in France. He paid the expenses of that property which included expenses which were really those of his former wife R. He conceded the respondent wife kept a record of all the expenses he paid in relation to that property.
[125]
Dr S was required for cross-examination in relation to his report which was annexed to his affidavit. He was asked by counsel for the husband whether, when he saw the wife, she told him that she had the full-time care of the parties' daughter. He replied, "Yes, she told me she had the care of 12 year old child." Dr S further said the wife had indicated she was experiencing pain in attending to the physical requirements of day to day care of the home and the child.
Dr S was asked whether his report would preclude the wife working from home. He said, "I think she would have difficulty with employment in the home. She may be able to do it however being able to do it in a sustainable and efficient way would be questionable." He agreed that if it was to occur she would have to be able to work at her own pace.
[126]
Ms A told me she is employed on occasions in a shop, working in this capacity for three days last year (2007). Her primary occupation is associated with O Business. She has a fulltime manager running that business. She was unable to tell me her taxable income for the year ended 30 June 2008. This is determined by her accountant. She said, from her recollection, her taxable income for the year ended 2007 was $34,000. She was unable to tell me what her gross income was from investments. She lodges BAS returns in respect of her superannuation income and she paid tax of $348 on the last quarter. She supports herself by drawing funds from her superannuation fund as is necessary to meet her living expenses. She takes only what she needs and she claimed to live modestly.
Ms A confirmed she and the husband commenced living together permanently at the end of 2003, although they spent time together prior to that time. Prior to the signing of her affidavit in February 2006 she and the husband had spent about half of the 2004 and 2005 years in France. They have not been able to do that since because of the husband's commitment to his daughter. She and the husband live at their coastal home approximately ten days out of each 14.
Ms A was shown a document. The document was not identified. She agreed the document scheduled her assets. She said the contents were correct; however, since the time of the creation of the document the situation has changed. She said the property at ... has been sold. She does not know what was received. The L Shop was sold and the shares in the L company were sold. She is unable to recall what she received other than that it was a small amount of money received from sale of the shares in the L company. The property in ... has also been sold. However, she did not receive any funds from that sale, nor did she make a gift of any of those funds. She had provided two tax returns to Mr Barbouttis, the husband's solicitor, some time ago, however she could not recall when.
She was shown a document. She identified it as a tax assessment in respect of herself for the 2004 tax year. She agreed it showed $17,000 in franking credits.
[127]
In her evidence in chief the wife told me she suffers from shingles. She has had three episodes this year and two last year.
Since she swore her Financial Statement on 17 October 2008 the wife has paid $47,470 further in legal fees. These funds came from a sale of shares held by the wife (as beneficial owner) to the child's trust (held in the wife's name). The wife withdrew $40,000 out of one of the accounts, said to be held in trust for the child, and transferred shares to that value to the child. The balance of the funds came from the wife's Savings Bond. The wife tendered the share transfer document which was marked as Exhibit W12.
That document evidenced the transfer of 2,640 shares in Origin Energy, in exchange for a consideration of $40,000. The transfer was to the wife, in trust for the child.
The wife tendered the statement of fees for the child's attendance at M College. Those accounts showed the fees for Term 1 at $3,243; the fees for Term 2 at $3,473; the fees for Term 3 at $2,935 and the fees for Term 4 at $2,956. The wife also tendered a book list which has been issued for the child for the 2009 year. That showed the cost of books required for her at $709.
An email marked as Exhibit W15 shows that the child's performance class fees for dancing next year will be at about $175 per term; ballet lessons will be $85 per term, and the technique, strength and flexibility class $85 per term.
The wife was cross-examined. She agreed that her affidavit had not been filed until December 2007, which was well outside the period allowed for the filing of the affidavit. She agreed that it took the threat of an undefended hearing to obtain the filing of the affidavit. She had eighteen months to consider the content of the husband's affidavit. She agreed that she had an opportunity, with documents, to confirm the contents of his affidavit. Further, she agreed that during that time she had all of the documents which ultimately she exhibited to her affidavit, and which were provided to the Court in a folder. She said she had found some documents after that date.
The wife agreed she was aware that an issue between the parties was the extent to which each had brought assets to the marriage/cohabitation.
The wife was asked about her knowledge of the husband having acquired shares in Ariadne.
[128]
"[the child's] assets were established with funds variously from our joint funds, my compensation monies, my family contributions, gifts from my father, birthday presents from different family members and friends and from inheritances received by me as referred to earlier in this affidavit. The balance was provided by me from savings I had prior to our cohabitation".
[129]
It was put to the wife that the funds in the Luxembourg account came from the husband. The wife replied: "They came from accounts in my name and [the child's] name which all originally came from [the husband]."
In relation to the husband's contribution as a homemaker the wife denied the husband had contributed a considerable amount in the home. She denied the husband had made any "considerable" contribution towards the care of the child.
Prior to the purchase of the H Street property the wife's father was a member of the household for approximately 12 months. It was put to the wife that the husband had assisted her father in the way in which he set out in his affidavit. The wife conceded only that the husband had assisted her father occasionally.
The wife was cross-examined about her trips accompanying the husband. She agreed that all expenses for air travel and accommodation were paid for by the husband's employer. She said the husband received an expense account. However, she said that they used some of their own money to buy food.
In relation to the assistance the wife claims to have given the husband in his employment, she claimed at one stage that: "The CEO was liaising with me about the husband's employment". I accept that statement was an exaggeration by the wife. The wife conceded that nowhere in her evidence does she set out any detail of how she says the husband's career was advanced because of something that she did.
So far as her own employment was concerned the wife conceded she has not worked since 2004. She has not made any applications for work. She said her eyes were not good enough to take on translation work. She claimed to have no future capacity for work.
The wife was asked about an account with St George Bank, being account number .... She said the funds in the account comprised of her money. The following was asked of her: "Is it the case that the funds in that account do not represent funds in trust for [the child]?" The wife replied: "It may be that funds from part of [the child's] trust money is in this account."
The wife acknowledged that the interest from the IBD trust accounts held by her father for the child was paid to an account into which the father's pension was paid. There is at least an inference that the income from those funds was applied for the benefit of the wife's father.
[130]
The husband gave his evidence in a straight forward and apparently honest manner. There was nothing about his presentation in the witness box or the content of his evidence, both written and oral, which led me to believe he was not being truthful.
In his cross-examination he gave every conceivable concession he could give. He readily conceded his memory was not good, especially in relation to the earlier years of the relationship with the wife. It was those earlier years of the relationship where he thought his recollection of bank accounts and the like was not good. He did, however, give the impression of attempting to be of assistance to the Court with his evidence. It subsequently transpired, following concessions made by the wife as to the financial circumstances of the husband at the time of the commencement of cohabitation, that his recollections were quite good.
There were areas of his evidence which I found compelling and preferred to the evidence of the wife. Those areas were the involvement of the wife in the husband's employment with Z Company and Z International. The wife sought to make a case that she had been of significant assistance to the husband in his employment with both those companies. She sought to suggest that she had been instrumental in achieving advancement for the husband within the companies. She sought to make out a case that she played important roles in promotional trips to other countries and Australia. The husband agreed she had been of assistance to him on those trips; however, he denied she did anything which was of importance so far as the companies were concerned. The wife agreed she was never employed by either of the companies which employed the husband. She agreed she was never commissioned by the companies to represent them.
The other area of evidence where I particularly preferred the husband's evidence to that of the wife related to his contribution as a homemaker and parent. The husband did not, in my view, attempt to aggrandise his contribution in this area. He willingly conceded that the wife made the major and the most important contribution. He did, however, profess to have made a complimenting contribution in this area. The wife would not agree that he did anything other than make the most minimal of contributions. This attitude of the wife also extended to the services which the husband extended to the wife's father whilst he was alive and not well.
[131]
Ms A is the husband's partner. She gave her evidence in a straightforward and apparently honest manner. She was asked many very private and personal questions about her financial circumstances and the nature of her relationship with the husband. She was remarkably good natured about the questions she was asked. There was nothing about her evidence which made me suspect she was not being truthful.
[132]
I have said a number of things about the wife's evidence. I have said I do accept the evidence of the husband in preference to that of the wife where they are in conflict and where there is no corroborative evidence to assist in the determination of fact.
The wife gave her oral evidence largely in a responsive manner. I could not detect any aspect of her evidence which suggested to me that she was being dishonest, however, there was an aspect of dishonesty to her evidence at large. She had, I find, deliberately chosen not to include in her evidence some facts which might be seen to be helpful to the husband's case. An example of this was the matter mentioned earlier about the shares which had been purchased by the husband with the overdraft he had secured from the Banque Nationale de Paris.
The husband said that the wife had exaggerated her contributions and downplayed his. I accept that criticism as valid. She was most reluctant to give him credit for any contributions made by him. One particular example of this was the free travel which the wife enjoyed during the marriage. She travelled extensively with the husband when he travelled with his work. She stayed in 4 and 5 star hotels with him. She travelled to Australia for about a fortnight every six weeks when she lived in France with the husband. She travelled either first class or business class whenever she travelled either with or without the husband. The travel was without cost to her. In the normal course one would imagine the wife of a company executive who had those trips and travel privileges would readily acknowledge they should be seen as a contribution by the husband. The wife in this case did not. She sought to make a case of her having made a contribution to the husband by travelling with him. She further sought to evidence her contributions to both the husband's career in Z Company by providing copies of letters in the husband's handwriting. These letters or notes spoke very highly of the wife. When questioned about the content of the letters, the husband explained the wife had dictated the contents of the documents. The husband said he had written what she had required in order to placate her or in ordinary language, "to keep the peace". I accept the husband's evidence in relation to that evidence.
The wife in her Financial Statement filed 17 October 2008 showed her income as $575 per week and referred to note D10. Note D10 shows the wife's income sources. None of the sources include income from the child's investments in shares or interest bearing accounts, yet the wife includes that income in her income tax returns thus representing to the Australian Tax Office that the income is hers. No information is provided as to the income of the child, if the wife truly does regard the income from the shares and deposits she says are held in trust for the child as the child's income. At item E17 the wife disingenuously sets out that she does not know the income of the child. These matters, inter alia, work against the credit of the wife.
[133]
Section 79 of the Family Law Act 1975 enables the Court to make orders with respect to the property of the parties to the marriage. In considering what order, if any, should be made the court is required to take into account the s 79(4) matters.
firstly, identify and value the net property, liabilities and financial resources of the parties at the date of the hearing;
[135]
assess the contributions of the parties pursuant to s 79(4);
2. consider the relevant s 75(2) factors; and
[136]
lastly, consider whether such an order, in all the circumstances, is just and equitable. The final consideration is a reflection of the requirement under s79(2).
There has developed, throughout the history of property settlement matters in this Court, two approaches to determining the division of property: (1) the global approach; and (2) the asset by asset approach. It is proper to consider these not as competing approaches but as alternative approaches. Mason and Deane JJ in Norbis v Norbis[1986] HCA 17; (1986) FLC 91-712 at 18 held that:
[137]
It has not been suggested that there is any fundamental difference between the two competing approaches which we have considered, in the sense that one will yield more just and equitable entitlements than the other. The general preference which has been expressed for the global approach is not by reason of any notion that it is the only approach authorised by the Act, but by reason of considerations of convenience. Accordingly, quite apart from the fact that its status as a prescribed approach is that of a guideline and not that of a principle of law, the application of the asset-by-asset approach does not of itself amount to an error of law.
[138]
As foreshadowed by the High Court in Norbis, although both approaches are legitimate the most common practice in this Court is to adopt the global approach.
In considering any alteration of property interests I am required to consider the contributions made by the parties in accordance with the matters outlined under s 79(4).Section 79(4) provides:
[141]
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
[142]
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
[143]
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
[144]
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
[145]
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
[146]
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
[147]
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
[148]
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In making a decision in relation to property, s.79(4)(e) requires a consideration of relevant s.75(2) matters. I here incorporate s.75(2):
[151]
(a) the age and state of health of each of the parties;
[152]
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
[153]
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
[154]
(d) commitments of each of the parties that are necessary to enable the party to support:
[155]
(ii) a child or another person that the party has a duty to maintain;
[156]
(e) the responsibilities of either party to support any other person;
[157]
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
[158]
(i) any law of the Commonwealth, of a State or Territory or of another country; or
[159]
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
[160]
and the rate of any such pension, allowance or benefit being paid to either party;
[161]
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
[162]
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
[163]
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
[164]
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
[165]
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
[166]
(l) the need to protect a party who wishes to continue that party's role as a parent;
[167]
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
[168]
(n) the terms of any order made or proposed to be made under section 79 in relation to:
[169]
(ii) vested bankruptcy property in relation to a bankrupt party;
[170]
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
[171]
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
[172]
(p) the terms of any financial agreement that is binding on the parties.
[173]
I am required to make an order which in all the circumstances is just and equitable.
[174]
Date of commencement of cohabitation and date of final separation
[175]
In the written submissions of the husband it is conceded that the date of cohabitation is no longer in issue and the Court should find the date of cohabitation to be 10 October 1986.
On 1 December 2008 the parties filed a document entitled "Findings of Fact no longer an issue to be determined". The first item in the document is:
[176]
"The parties agree that co-habitation commenced on or about 10 October 1986."
[177]
The parties had set out in their affidavits different dates as the commencement of their cohabitation. The wife said the date was 10 October 1986. The husband said it had been in February 1987.
In her oral evidence the wife agreed she had selected that date having had access to a copy of the husband's divorce application which he had relied upon in seeking dissolution of his marriage to his former wife. The 10 October 1986 date was specified as the separation date in that application for dissolution of marriage. In her oral evidence the wife told me she had an independent recollection of the date of cohabitation being 10 October 1986. I found that evidence of the wife to be unconvincing.
Whatever the true position is, it seems that a date of about 10 October 1986 as the date of commencement of cohabitation is a reasonable date to select. The husband conceded his recollection about the date he selected as the date of cohabitation may be inaccurate. He readily accepted his recollection of that time was not good so far as remembering precise dates.
I conclude therefore that the date of cohabitation was 10 October 1986.
In relation to the date of separation the parties appeared to have an issue as to the precise date of separation. The wife said the parties separated on 3 October 2000 and the husband asserted that separation occurred in July 2000.
The parties in a document provided to the Court on 1 December 2008 noted their agreement that the "date of final separation occurred on or about 3rd October 2000."
[178]
Initial contributions - values of assets, extent of liabilities, wife's motor vehicles, and husband's bank savings.
[179]
In her affidavit sworn 17 December 2007, the wife set out her assets and liabilities at the commencement of cohabitation at paragraph 19. I here reproduce that evidence:
[180]
[E] Road - as to a 10/58 share (my parents owned the balance of [E] Road and lived there) $(value struck out)
[181]
Jewellery, furnishings and household effects (value struck out)
[182]
In relation to the property at the E Road property, the wife said at paragraph 21 of her affidavit sworn 17 December 2007 that she became a registered proprietor of the property as tenants in common with her brother, Mr OU, in February 1980. She said she held a 19/20 share and her brother held a 1/20 share. At paragraph 21 of her affidavit the wife said she and her brother entered into a series of Deeds of Trust with her father, Mr OU Snr and her mother, Mrs OU, in relation to the E Road property which confirmed the wife's beneficial ownership initially as to 4/58ths and then as 10/58ths. The wife's evidence is that at various times during the course of their relationship the parties lived at the E Road property (see paragraph 23 of wife's affidavit sworn 17 December 2007).
At paragraph 72 of her affidavit sworn 17 December 2007 the wife said from 28 April 1985 to 27 July 1985 the parties lived in J Street, northern Sydney in an apartment rented by the husband. Between July and September 1985 the wife said the husband and wife lived at the home of the wife's parents (see paragraph 73 of the wife's affidavit). She said between 17 September 1985 and 10 October 1986, the husband lived in a property provided by his employer with R and H, before returning to live with the wife on 10 October 1986 (see paragraphs 74-75 of the wife's affidavit). This latter date has been determined by me to be the date the cohabitation commenced
In that affidavit at paragraph 26, the wife set out the assets and liabilities of the husband at the commencement of cohabitation. She said those were as follows:
[183]
Property known as [L], France (owned by [the husband] and [R Lockie])
[184]
Property in [E], France - as to an 18.75% interest ([husband's] mother and his siblings owned the balance of this property
[185]
Property at [C], France owned jointly by [the husband], his mother and his siblings
[186]
Overdraft from the Island bank [island currency] 3M
[187]
Prior to cohabitation, the wife said at paragraph 27 of her affidavit sworn 17 December 2007 that the husband received a 75% share in a property at E in France ("the [E] property") in equal parts with his three siblings. The wife says the husband's mother holds the other 25% and has a life tenancy in that property, which is a large two storey stone house. The wife said the husband paid his share of the cost of capital works to E property while the husband's mother paid the other expenses and outgoings from of the rental income she received (see paragraph 30 of wife's affidavit). At paragraph 33 of her affidavit the wife said the single expert valued the property as at October 2000 as €21,853, that being $35,135.19 based on the exchange rate of €1 = $1.6077971735. At paragraph 34 of her affidavit the wife points to a further valuation of the property as at March 2007 at €33,750, being $54,263 based on the exchange rate of €1 = $1.6077971735.
Prior to the commencement of cohabitation the husband and R Lockie also purchased a property known as L, France ("the [L] property"), and each held a 50% interest (see paragraph 35 of wife's affidavit sworn 17 December 2007). The wife said the husband's half share in the property has been valued by the single expert, as at October 2000, at €32,500, being $52,253.41 based on the exchange rate of €1 = $1.6077971735 (see paragraph 37 of the wife's affidavit). At paragraph 38 of her affidavit the wife points to a further valuation as at March 2007 which valued the husband's interest at €42,500, being $69,458.
The wife's evidence at paragraph 39 of her affidavit sworn 17 December 2007 is that prior to cohabitation the husband received a one quarter interest in the property at C, France ("the La [C] property") from his father's estate. The wife said the C property was sold on 15 December 1998, and she is unaware of the amount realised on sale (see paragraph 40-41 of the wife's affidavit sworn 17 December 2007). On 2 July 1990 the wife said the husband sold a property which he owned known as the Island property and the net proceeds of the sale were local currency 14,669,870 ($188,651 and 806,842.85FF). Those monies were deposited into the husband's account with the Island bank and subsequently transferred to Société Generale London (see paragraphs 125-126 of the wife's affidavit).
Paragraphs 15-37 of the husband's affidavit extensively detail the husband's contentions regarding initial contributions. The husband says that at the commencement of cohabitation (which he had contended was in 1987) he had the following property:
[188]
A real property called the Island property which he acquired in or about 1970 which had mortgage over it of about 1,995,550 (local currency) with Comptoirs Francais du Pacific ("CFP"). The property was subsequently sold in about 1990 as part of the husband's property settlement from his former wife. The net proceeds were approximately 14,669,870 local currency ($183,790). The husband said the property was sold prior to his marriage with the respondent wife and that she never visited nor contributed to the property. It is an agreed fact that the property was sold in 1990 prior to the marriage however after cohabitation.
2. Prior to the sale of the Island property the husband said he incorporated in Gibraltar, in about 1987, a company called T Ltd. He established a trust whereby a company called IT Company Ltd held shares in T Ltd. The husband was a beneficiary of the trust. Upon the death of the husband he says that the shares would then be held on trust for his former wife and then his daughter of the previous marriage. The husband said that when the Island property was sold the proceeds of sale were placed into this trust. Documentation relating to the trust was exhibited and marked Ex RGL2 to the husband's affidavit.
[189]
The husband said he inherited two properties in France upon the death of his father in 1980: the E property and the C property as noted above. Both properties are subject to what is known as "userfracht" (a concept which the husband says is similar to a right of tenancy) to his mother who currently resided in the former named property**.** The concept is explained at page 4 of the husband's affidavit. The husband says the C property was sold in or about December 1988 with the consent of his mother and the husband's share of the proceeds (about $2,000) was given by him to his mother as repayment for maintenance she had paid in respect to the property. Documents relating to the two properties were marked Ex RGL3 to the husband's affidavit.
[190]
The husband has a Porsche coupe which is garaged in France. He said the vehicle is in a state of disrepair and needs work. The husband asserts the value of the vehicle as at February 2006 is AUD$11,345. A valuation dated 30 July 2004 by a local mechanic is marked Ex RGL 4 to the husband's affidavit.
2. The L property in France is a property in which the husband says he has a 50% interest. He says that he funded all of the purchase price; however, the property stands in the joint names of the husband and his former wife. He said the property has, as at February 2006, fallen into a state of disrepair with structural problems and two roofs have fallen in. He says that his former wife (R Lockie) has not contributed toward this property. Ex RGL 5 to the husband's affidavit contains copies of the contract for purchase of the property.
3. Savings in a number of French bank accounts totalling AUD$70,000. The source of the funds was from his own income.
4. A share portfolio of shares listed on the ASX and as at 1976 the folio was worth approximately AUD$176,000. He had a liability to the Banque Nationale De Paris of approximately AUD$116,000 which he had borrowed in order to trade on the stock market.
5. A number of personal items such as a Cartier watch, business clothes and some antiques and furniture.
6. Accumulated points in his pension funds; namely, ARRCO AGIRC and CRAM which has the following monetary value (and evidenced in the email marked Ex RGL 59 to the husband's affidavit):
* ARRCO (had 2576.78 points, as at February 2006 had 5075.97)
* AGIRC (had 58391 points, as at February 2006 had 85003)
* Does not have figures for CRAM
At page 10 paragraph 28.2 of the wife's submissions, counsel for the wife notes the husband gave evidence during cross-examination acknowledging he had a debt to BNP Sydney to the sum of $142,703.50 as shown by the bank statement which forms part of exhibit 3 to the wife's affidavit. Exhibit 3 also indicated the husband had a Visa credit card debt of $2,674.28.
At the commencement of the relationship with the respondent wife, the husband says that the wife had the following property (see paragraph 16 of the husband's affidavit):
[191]
Lease purchase on a Toyota Corolla;
2. 17% interest in her parent's home in northern Sydney;
[192]
Share portfolio;
2. Bank account savings;
3. Personal effects;
4. No liabilities except for the lease agreement referred to above.
As at the time of separation from his former wife, the husband says that he had an approximate after tax wage of AUD$170,000 which was composed of salary and supplements because he was living away from France and had housing, car and entertainment expenses paid for (the breakdown of the A$170,000 is detailed at paragraph 17 of the husband's affidavit).
During the cross-examination of the husband he conceded that at about the date of cohabitation commencing he had a Visa card debt of $2,674.
I refer to the matters I have set out earlier in these reasons flowing from the oral evidence of the parties in relation to this issue.
The husband's submissions in relation to this issue were contained in two portions of the written submissions provided by him. Under the heading "Initial contributions of each party" the husband submits:
[193]
(a) The real property [the Island property] and an interest in the [T] Trust (see paragraphs 15(a) and (b) of the Husband's affidavit). This property was of course on the evidence of both parties, sold in 1990 realising approximately $183,790;
[194]
(b) An interest in the [E] and [C] (this property was sold in 1988) properties, subject to a userfracht (see paragraph 15(c) of the Husband's affidavit);
[195]
(c) A Porsche coupe (see paragraph 15(d) of the Husband's affidavit);
[196]
(d) A 50% interest in the [L] property owned jointly with the husband's former wife, [R Lockie] (see paragraph 15(e) of the Husband's affidavit);
[197]
(e) Savings of approximately Aus$70,000 held in various bank accounts (see paragraph 15(f) of the Husband's affidavit);
[198]
(f) A share portfolio worth approximately Aus$176,000 (with a liability of approximately Aus$116,000 attached to same) (see paragraph 15(g) of the Husband's affidavit) and a debt (not able to be quantified) to BNP Singapore branch against which there was a share portfolio again not capable of quantification;
[199]
(g) An interest in an investment scheme called "[P 1]" and "[P 2]" (see paragraph 15(h) of the Husband's affidavit);
[200]
(h) Various personal items (see paragraph 15(i) of the Husband's affidavit).
[201]
The husband was employed full-time in a high-level position with [Z Company] and was on a salary package of approximately Aus$170,000 per annum, and had accumulated points in various pension funds (see paragraphs 15(j) and 17 of the Husband's affidavit).
By comparison, the wife claims to have brought into the relationship (see paragraph 19 of the Wife's affidavit):
[202]
The wife was employed full-time by [a] Bank in Sydney in the position of [...] on a salary package of $46,930 per annum (see paragraphs 42 and 45 of the Wife's affidavit).
In paragraph 389 of the wife's affidavit, the wife replies to paragraph 15(f) of the husband's affidavit. The wife was cross-examined on her reply to this paragraph, wherein she denies that the husband had savings and shares at the commencement of cohabitation to the extent claimed by him.
The wife, however, conceded during cross-examination that the husband appeared to possess shares and (although he may have been trading in the name of his former wife, [R Lockie]) these shares were subsequently sold to discharge the overdraft facility in his name (see submissions in paragraphs 6 to 11 under the heading "Credit" above).
As a consequence of the negative findings that the husband has invited the Court to make in respect of the wife's credit, it is respectfully submitted that the Court ought to accept the husband's evidence about the extent of his assets and liabilities as at the commencement of cohabitation and disregard the evidence of the wife.
The wife's submissions about her initial contributions were as follows:
[203]
(2) Issues concerning initial contribution relate to the property and liabilities of the parties at the date of commencement of cohabitation. The husband provides an account of this at H para 15. He conceded in cross examination that although that paragraph commences with the words "At the commencement of my relationship" he was in fact speaking about the commencement of cohabitation. He asserted that cohabitation commenced in 1987. Consequently the account given in paragraph 15 is not an account of the husband's property and liabilities at the commencement of cohabitation since the position is that cohabitation commenced on about 10 October 1986. The husband conceded in cross examination that there were various changes in his financial position between 1986 and 1987. This became clear particularly with regard to his liabilities throughout the second half of 1986 and the first seven months of 1987 and his share trading. His share trading involved shares purchased in his name and shares purchased in the name of his former wife [R Lockie]. The husband's affidavit gives no account of his property and liabilities as at October 1986.
[204]
The wife gives an account of the assets and liabilities of the parties at the commencement of cohabitation in October 1986 at W1, paras 19 and 26. No issue was taken with the wife's account of her property and liabilities as set out in W1, para 19. With respect to the husband's property and liabilities as set out in W1, para 26, the properties referred to being real estate are not the subject of issue between the parties although there is no evidence as to their value. There is also no issue that the husband had a Porsche motor vehicle although as the husband said in his evidence the vehicle had not been driven for 20 years. The husband gave evidence in cross examination that he had a debt to BNP Sydney of $142,703.50 as shown by a bank statement which forms part of Exhibit 3 to the wife's affidavit. The husband gave evidence in cross examination that he had purchased shares for his former wife, that those shares were in his former wife's name and that she was the owner of the shares. That is, there was no suggestion that she was merely a trustee of the shares for the husband. The husband also had a Visa card debt of $2,674.28 as shown by his credit card statement with BNP which forms part of Exhibit 3 to the wife's affidavit.
[205]
In cross examination the husband asserted that he paid for the shares purchased in his former wife's name and that as she was the owner of the shares he had lent her the money. However, there is no evidence concerning this matter in his affidavit. Exhibit 3 to the wife's affidavit shows that the husband received significant sums of money of approximately $200,000 in total on 30 October 1986. The husband does not explain in his affidavit how it was that these sums were received by him. One possibility is that his wife sold the shares which he had paid for and directed the proceeds of sale be paid to the husband's account with BNP Sydney. However, that is purely speculation and no adequate account of this matter was provided by the husband either in cross examination or in his affidavit. Exhibit 3 to the wife's affidavit also refers to transfers to BNP Singapore and UOB Geneva of a total amount of $57,000 on 30 October 1986. However, the husband gave no evidence in his affidavit of having accounts with these banks. Whether the funds were transferred as savings to accounts in the husband's name or were transferred to accounts in the name of some other person, such as his former wife, or were it repayment of debt owed to those banks is unexplained by the husband either in re-examination or in his affidavit. Accordingly, it is accepted that the husband had the real estate interests asserted in W1 para 26, the Porsche motor vehicle, an interest in pension funds in France, but it is not conceded that the husband had any credit balance in a bank account in his own name at the date of commencement of cohabitation, nor that he held a share portfolio at that date. After cohabitation commenced, namely on 30 October 1986, the husband did receive approximately $200,000 into his bank account which almost paid out his overdraft debt and paid out his credit card debt.
[206]
The wife's submissions in response on this issue are as follows:
[207]
In reply to paragraph 61 of the husband's submission the husband relies upon paragraph 15 of his affidavit to support the matters set out in that paragraph. However that evidence is not accurate since that paragraph of the husband's affidavit refers to the time of commencement of cohabitation between the parties which the husband conceded was a time during 1987. Paragraph 15 of the husband's affidavit is of no assistance in determining the extent of the property of the husband, and in particular his savings and investments, at the true date of commencement of cohabitation namely 10 October 1986.
[208]
In reply to paragraph 66 it appears that the husband's submissions did not take account of the evidence given by the husband in cross examination to the effect that he had purchased shares prior to the commencement of cohabitation but purchased them in the name of his wife who was the owner of those shares. That is she was not merely a trustee for the husband. At no time did she transfer the shares back to him. It is not clear that it was the shares which were in the name of his former wife that were sold to pay into the overdraft account which is referred to in the statement of the husband with BNP Sydney which is Exhibit 3 to the wife's affidavit.
[209]
In relation to the wife's submission about the shares which had been purchased in the husband's former wife's name I am satisfied, taking into account all of the evidence on the topic, that it was the shares which were purchased in that wife's name which were subsequently sold by the husband and he received the funds from that sale.
The submissions of the wife make no reference to the concessions made by the wife in cross-examination.
In my notes of the wife's evidence I have recorded the wife's concessions on this issue as follows:
[210]
It was put to the wife that in October 1986 the husband had access to the following assets:
[211]
Access to a substantial portfolio of shares in Ariadne. She agreed.
Assuming the advance from the Banque Nationale de Paris (Singapore) had been complied with in terms of the conditions of that advance, the husband would have held up to a further $160,000 in shares (subject to an advance of up to $100,000 to buy those shares). She agreed.
Approximately $56,000 in accounts overseas. She agreed.
Approximately $6,600 in an account in Tokyo. She agreed.
She agreed that the husband's recollection that at the time of cohabitation he had approximately $70,000 in cash in banks was correct.
The wife conceded that the Island property which the husband owned was sold for $180,000 in 1990 although it had been listed for sale in 1988.
The wife acknowledged that on 10 October 1986 the husband must have held shares to the value of AUD$199,000. She agreed that on her own evidence the husband had a debt of $117,000. She acknowledged that after the sale of shares of the husband's (although standing in the name of his former wife) on 30 October 1986 the husband had another 10,000 shares in Ariadne. She agreed those shares had a value at that time of $39,000 to $40,000.
[212]
I accept the submissions of the husband in large part and find the parties initial contributions were as follows.
The husband's initial contributions:
[213]
The real property called the Island property. This property was on the evidence of both parties, sold in 1990 realising approximately AUD$183,790. The proceeds were paid to the T Trust.
2. An interest in the T Trust (see paragraphs 15(a) and (b) of the Husband's affidavit).
[214]
An interest (now 16.875%) in the E property and the C property (this property was sold in 1988 the husband receiving none of the proceeds) properties, subject to a userfracht (see paragraph 15(c) of the husband's affidavit). The userfracht provided for the husband's mother to have occupancy for life;
[215]
A Porsche coupe (see paragraph 15(d) of the husband's affidavit);
2. 50% interest in the L property owned jointly with the husband's former wife, R Lockie (see paragraph 15(e) of the husband's affidavit);
3. Savings of approximately AUD$70,000 held in various bank accounts (see paragraph 15(f) of the husband's affidavit);
4. A share portfolio worth approximately AUD$176,000, with a liability of approximately AUD$116,000 attached to same) (see paragraph 15(g) of the husband's affidavit) and a debt (not able to be quantified) to BNP Singapore branch against which there was a share portfolio again not capable of quantification;
5. An interest in an investment scheme called "P 1" and "P 2" (see paragraph 15(h) of the husband's affidavit);
6. Various personal items (see paragraph 15(i) of the husband's affidavit).
7. Accumulated interests in pension funds;
8. At about the date of cohabitation commencing the husband had a Visa card debt of $2,674.
At the time of commencement of cohabitation the husband was employed full-time with a French based international company and was on a salary package of approximately AUD$170,000 per annum.
At the date of cohabitation I find the wife had the following property and resources.
[216]
A 10/58 share of the E Road property;
2. Cash on deposit of $81,569.82;
[217]
Shares in public listed companies worth about $40,565;
[218]
Jewellery, furnishings and household effects;
2. Superannuation of $13,613.00;
3. Holden Gemini motor vehicle;
4. Toyota Seca motor vehicle;
5. Visa (in credit) of $298.87.
The wife was employed full-time by a Bank in Sydney on a salary package of $46,930 per annum (see paragraphs 42 and 45 of the Wife's affidavit).
[219]
Extent of homemaking and parenting contributions of each party, and wife's contributions to the management of finances
[220]
The husband's submissions on this issue are as follows:
[221]
As to homemaker and parenting contributions see submissions under the heading "Credit" above and submissions under the heading "Contributions" below.
[222]
In respect of the wife's management of finances, the husband agrees that the wife assumed management of the parties' finances during cohabitation. Since separation, the Husband contends that the wife has used those finances for her own benefit and to acquire assets for herself and assets which are alleged to be held on trust for [the child]. The husband further contends that the wife has not provided adequate disclosure or explanation as to the application of these finances.
[223]
The homemaking and parenting contributions of the parties during their cohabitation are the subject of disputed accounts between the parties in their affidavits. The wife gave evidence of her homemaking contributions at W1 paras 96, 97, 109, 116, 117 and with respect to the husband's welfare, W1 para 112.5. The husband gave evidence on this topic at H paras 23, 27, 47 and 90. The husband denied in cross examination that the wife did 95% of the cooking during cohabitation. He conceded that when they lived in France it was her practice to cook meals and freeze them when she returned to Sydney for holidays. He agreed that she prepared banquets for the family in Sydney and that it was his practice to return home from work at lunchtime when they lived in France and the wife prepared lunch for him on these occasions. He conceded that while living in France the wife did most of the laundry. He was uncertain as to whether she did most of the vacuuming. He acknowledged she did the shopping although on occasions he helped. The husband did not agree that the wife assisted with the care of [H] when she stayed with them in France and said that his statements in Exhibit W1 concerning the wife and [H] were dictated by the wife and only partly true. For the reasons which have been submitted in relation to the credit of the parties it is submitted that the husband is either not being truthful on these matters or has a poor recollection of them and accordingly the wife's evidence as to her homemaking contributions should be accepted over that of the husband.
[224]
There appears to be little dispute that the wife was the major contributor during the cohabitation of the parties to the parenting of [the parties' child]. The husband was engaged in full time work until his retirement. [The child] was born on [...] July 1994 and the wife must have been the major contributor to her day to day care while the husband was working. It is submitted that this continued even after he ceased work. From July 1994 until December 1996 the wife was in Australia with [the child] and the husband was living in France. The husband was able to make little contribution to the care of [the child] during this period. It is submitted the wife's account of her parenting contributions with respect to [the child] is more likely to be correct than the husband's account of their contributions in this regard for the reasons submitted above with respect to the credit of the parties.
[225]
Accordingly it should be found that the wife was a far greater contributor than the husband to the homemaking duties required for the parties and their child during the cohabitation of the parties and the major contributor to the parenting needs of [the child] during cohabitation and even more so following cohabitation when [the child] continued to live full time with the wife except for periods of irregular contact with the husband.
[226]
The wife also relied upon submissions in reply where she set out the following on this issue:
[227]
In reply to paragraph 26 of the husband's submissions it is submitted that if the husband wished to ascertain what had become of the funds held by the wife at the date of separation the matter could have been explored in cross examination. The wife has provided such disclosure as she is able to having regard to the passage of time and the documents available to her. The fact that a party uses funds "for her own benefit" or "to acquire assets for herself" does not mean that those funds have been misappropriated or disposed of in such a way that they should be added back against the party having control of the funds. If the husband is meaning to convey that some adverse conclusion should be drawn as to the use of funds by the wife following separation and that she has failed to give sufficient disclosure as to what has become of those funds this is a matter which should have been explored in cross examination but was not.
[228]
In the husband's written submissions, Senior Counsel for the husband contends there was no issue that it was the wife who, from the commencement of the cohabitation, managed the parties' finances. He submits the role as money manager was no more than an extension of her occupation in the banking sector at the time.
The husband submits the wife has sought to minimise the homemaker and parenting contributions of the husband after December 1996 (including helping look after the wife's father) and has sought to exaggerate her own contributions. He points to paragraphs 96, 97 and 116 of the wife's affidavit. It was put to the wife in cross-examination that following December 1996 the husband was in a position to and did in fact contribute to domestic chores on an equal basis. Senior Counsel argues that given the wife had suffered the accident in late 1995 she would not have had the ability to carry out physical activities. She would have been restricted, pointing to paragraph 73 and 90 of the husband's affidavit.
At page 12 of the wife's written submissions Counsel for the wife submits the Court should find that, based on the evidence, the wife was a far greater contributor than the husband to the homemaking duties during the cohabitation. She was also the major contributor to the parenting needs of the child during cohabitation, and even more so when the child continued to live full time with the wife except for the periods of irregular contact with the husband post separation.
The wife said at paragraphs 96-97 of her affidavit that from 1986 to 1988 she attended to almost all of the cooking and preparation of the meals, with the occasional assistance of the husband who regularly worked late. She said that for the remainder of the period of cohabitation she did 95% of the cooking, including preparing for dinner parties for friends and the husband's clients. She said she did all the domestic duties (such as cleaning, shopping, and clothes washing). She said the husband assisted at certain times regarding these duties (see also paragraph 116 of the wife's affidavit). In cross-examination the husband denied the wife did 95% of all the cooking during cohabitation but conceded she did make a substantial contribution by way of cooking. While they were in France he said the wife took care of the housework. However, he did help with the shopping. The husband made other concessions in favour of the wife about her contributions as a homemaker.
[229]
The evidence supports a finding that, taken as a whole, the majority of the homemaking and parent contributions made by the parties during the cohabitation were made by the wife. The wife cared for the child for significant periods of time between July 1994 and May 1996 whilst she lived in Australia and the husband predominantly lived in France. During that time the husband did visit Australia and while here did provide some contributions towards the care of the child.
I accept that the wife has played a significant role in the management of the parties' finances. She has managed her own investments and also the joint investments of the parties. She has also assisted the husband in record keeping in relation to the cost of maintaining the L property in France. The husband was also significantly involved in the management of his money during the cohabitation and in particular, following his retirement from Z Company.
Although finding that the wife's contribution as a homemaker and parent represented the majority of the contributions of the parties in this area I do find that the husband's contributions were significant and not token.
[230]
Extent of wife's contribution to husband's earning capacity and support for him in his career at Z Company / Z International
[231]
The wife's written submissions in relation to this issue were as follows:
[232]
The wife made a significant contribution to the husband's earning capacity and support for him in his career at [Z Company / Z International]. In W1 para 98 the wife records that in September 1988 the husband was transferred to [France] by his employer and the parties then moved to Paris in 1992: W1 para 100. The wife joined the husband in these moves which occurred by reason of the husband's career. In W1 paras 105-112.6 the wife records her support for the husband in his career by accompanying him on the numerous trips referred to in different parts of the world and in France and also her efforts at entertaining executives, employees and clients of [Z Company] while the husband worked for that employer. The matters set out W1 paras 105-112.6 concerning the wife's efforts in this regard were largely depreciated by the husband in cross examination. It is submitted that the wife's evidence should be accepted for the reasons submitted above concerning the credit of the parties and also because the wife's account of her efforts is consistent with what the husband wrote in Exhibit W9.
[233]
The wife claims to have made contributions to the marriage by her attendance at various [Z Company / Z International] functions with the husband and travelling with him around the world. However, in cross-examination the wife was not able to point to any direct benefit obtained by the husband in his employment from her attendance at these functions. The husband contends, rather, that the wife benefited from this lifestyle and that this is in fact a contribution by him to the marriage and not a contribution by the wife;
[234]
In her affidavit sworn 17 December 2007, the wife said that during cohabitation she hosted dinner parties for clients of Z Company, including shopping, preparing meals, cooking, serving and cleaning, both in Australia and France. At paragraphs 106 - 112 she asserts that she contributed to the husband's career progression. She said she accompanied him on business trips around the world, aided in negotiating and liaising with Z Company regarding the postings of the husband and entertained people with whom the husband was developing business relationships with Z Company in France and Australia. This included, the wife said, cocktail parties and dinner parties and the preparation prior to and cleaning up following those events.
In cross-examination of the wife the husband's Counsel canvassed with her many of her claims. The effect of the cross-examination was that I was left with the compelling conclusion that much of what the wife felt she was doing to assist the husband's career was a figment of her imagination. That is, for example, the wife did accompany the husband on business trips. They travelled first class and stayed in luxury hotels. On any view it was a desirable lifestyle for the parties. The wife, however, sought to convert that circumstance into one where she was indispensable to the husband on these trips and integral to the business achievements of the husband.
[235]
As will be seen elsewhere in these reasons, my assessment is that the wife has attempted to make a case that she made a substantial contribution towards the husband's employment. I do not accept that is the case. I find that the wife's accompanying the husband on his business travel to various places in the world did not contribute to his employment. I accept that the wife was a support to the husband in entertaining guests associated with his work; however, I also accept the husband's evidence that these were not frequent events. I also accept that it would have been a comfort and support to the husband to have the wife accompany him on his travel with his work. Thus, in a minor sense, the wife must be seen as making a contribution to the environment in which the husband worked, thereby giving him the capacity to concentrate on his work and progress his own position with his employer.
[236]
Incomes of the parties during the marriage and after separation
[237]
This issue effectively disappeared during the trial as the husband was able to tender schedules which set out the income of both parties during the cohabitation. There was no suggestion that the schedules were not based on source documents available to the parties. The husband's evidence of income is contained in Exhibit H10. The wife's evidence of her income earned during the cohabitation is contained in Exhibit H17. I have set out in these reasons matters relating to the income earned by the wife and in particular, that part of her income was derived from the rent of the N Street property, all of which was included in her tax return notwithstanding the property was held beneficially by the parties in equal shares. It is clear that during the cohabitation the husband's income vastly exceeded that of the wife.
[238]
Source and ownership of assets in the child's name and assets allegedly held by wife and or husband on trust for the child
[239]
The husband's submissions in relation to this issue are as follows:
[240]
In paragraph 99 of his affidavit, the husband identified the source of funds for [the child's] Credit Lyonnais account in Luxemburg and is able to demonstrate that the majority of those funds were derived either directly or indirectly from his earnings, sales of real estate in his name or his retirement package.
It is not uncommon that during the course of a marriage, the parties create pools of funds which are designated for particular purposes. In this case, for example in relation to the Credit Lyonnais account "for [the child's] education". The designation of funds in that manner does not create any trust in favour of the proposed party to benefit. The funds at all material times remain in the control of the parties to the marriage and on separation are available for distribution between them. If, having regard to the Court's determination as to the appropriate distribution, a party in whose favour that distribution has been made, wishes to retain and use the proportion of the funds distributed in their favour for the purpose designated during cohabitation, then that is entirely a matter for them. In the present case, there is no evidence of any declaration, agreement or common intention sufficient to create a trust express or implied in favour of [the child].[1]
With respect to the assets held by the wife allegedly on trust for [the child], as already referred to above, despite the fact that the Wife was able to provide precise figures for most of the assets and liabilities mentioned elsewhere in her affidavit (and at all times clearly had documentation available to her to do so) she was unable to provide anything other than generalisations in respect of the source of funds used to acquire the assets now held by her allegedly in trust for [the child].
The husband contends that the majority of funds in joint accounts and accounts held by the wife for herself (and those allegedly held in trust for [the child]) came from the husband (see for example paragraphs 72, 77 and 99 of the Husband's affidavit).
There is no doubt that the wife has acquired shares and investments in her name notionally in trust for the parties' daughter [the child]. As has been submitted above, if the wife chooses to apply those funds for her daughter's benefit, that is a matter for her. It is, however, not open to her to seek to quarantine assets on the basis that they are held in a bear trust merely because she asserts this to be the case. Furthermore, in the circumstances of this case, the wife has sole control and management of all of the assets said to be held on trust for [the child]. She has included the interest earned on investments in her tax return and indeed used a substantial amount of one fund (approximately $40,000) to meet her legal fees.
[241]
In reply to paragraph 34 of the husband's submissions complaint is again made as to a failure to provide specific details concerning the disposition of funds received from a compensation award by the wife in 1999. It is submitted that a party is not obliged to provide an accounting for funds received during the cohabitation to demonstrate that they have been applied for family purposes. If the funds have been received during the cohabitation of the parties, as the compensation funds were, then such funds are a financial contribution by that party in the absence of evidence to the contrary: Parshen v Parsen (1996) FLC 92.720 at page 83-665. If the wife used the funds to buy shares in her name and to maintain [the child] post separation it is submitted that this is an appropriate use of such funds and no adverse conclusion can be drawn against the wife with respect to that matter. To the extent the funds have been applied to buy shares in [the child's] name the wife relies upon the submissions made in chief as to why those shares should now be treated as [the child's] property and not the property of the parties to the remarriage.
[242]
Both parties have made submissions with merit. Both recite the evidence and concessions made. The wife relied on a concession which the husband is said to have made in her submission when she said, "In cross examination the husband conceded that a large part of the funds in the accounts which comprise item 41 of the balance sheet came from the wife's father." Such a submission ignores the evidence of the wife where she said that what came to the "trust account" from her father was $20,000. Further, it ignores her evidence that the bulk of the money in Australia (in accounts styled as trust accounts) was sourced from the wife's father and from her compensation money.
Further, the wife relies upon a concession said to have been made by the husband's Counsel. The submission is: "It was conceded by the husband's counsel at the hearing that the accounts referred to in W1, para 237, which are the accounts referred to in item 41 of the balance sheet, are all accounts or shares held in the name of the wife "as trustee for [the child]". If it is intended by this submission to establish that the husband conceded the money and shares held by the wife in the name of the child does establish a trust exists then in my view that is not achieved. The context in which the concession was made by the husband's Counsel does not give a factual basis for the submission in any event. The transcript will show that the husband has cross-examined the wife on specific bank books which she produced and which she said created the trust fund or some part of it. Those books were tendered and became Exhibit H13. Those books have the name of the accounts affixed to each book. The bank books or statements in relation to the funds which now stand to the credit of accounts which are set out in items 40 and 41 on the balance sheet tendered by the parties were not provided to the Court. In that context the husband's Counsel, who I assume had seen the relevant documentation, conceded the name of those accounts.
Clearly, naming an account as a trust account is just one part of the evidence which needs to be taken into consideration in determining whether a trust actually exists or not.
There is no written trust deed or document to establish the trust said to exist in relation to the funds held "in trust for [the child]".
The wife said the evidence of the trust she holds is in the bank account statements/books. She said the accounts were originally accounts that were opened by her father. The wife said she took over those accounts before her father's death. After her father's death she opened accounts in her name "in trust for [the child]" and transferred the balances from the accounts which were originally held in her father's accounts.
[243]
"If the trusts do exist in relation to the assets held in the name of [the child] both in Australia and Luxembourg what part, if any, should section 85A play in the circumstances of this case?"
[244]
In response to that question the husband provided the following further submission.
[245]
1. With respect to the email from his Honour's Associate sent to the parties on 16 July 2009, which raised the query: If trusts do exist in relation to the assets held in the name of [the child] both in Australia and Luxembourg what part, if any, should section 85A play in the circumstances of this case?, the husband (in addition to the submissions contained in the written submissions of his counsel dated 7 December 2008 and 23 December 2009) makes the following submissions.
[246]
2. The Husband's primary submission is that the assets held in [the child's] name and by the wife allegedly on trust for [the child] are assets of the parties, that no trust exists for the reasons advanced in paragraphs 21(a), 29 - 35 and 119 of the husband's Submissions prepared by Mr Lethbridge SC and Mr Gramelis of counsel and dated 7 December 2008.
[247]
3. However, in the event that the Court finds that a valid trust in respect of [the child] does exist with respect to any assets allegedly so held by the wife, the husband contends that s.85A of the Act confers an additional source of power on his Honour to make the orders sought by him.
[248]
4. The husband submits that any settlement on [the child] of the parties' assets during the marriage is a "post nuptial settlement" within the meaning of s.85A of the Act. This would be so whether declared by the parties (which for the reasons already outlined the husband contends is not the case) or by the wife alone. Plainly it is open to the Court to make such Orders as it considers just and equitble with respect to the trust fund.
[249]
5. In an article written by Justice Nygh in the Australian Journal of Family Law (volume 1, 1986 at page 25), his Honour as he then was discusses the effect of s.85A on children and in particular the principle of "quid pro qo" in so far as the re-arrangement of a settlement may effect the existing rights of a child to the marriage (see also Meller v. Meller (1967) 10 FLR 12 at 18). In this respect, the husband submits, for the reasons advanced in earlier written submissions, that to the extent that the Court may require any compensation to [the child] under the "quid pro qo" principle this ought to be borne solely by the wife out of her property settlement entitlements. Alternatively, it is open to leave funds said to be held by the wife in trust (unless needed to meet any Order payable to the husband) with her as part of her entitlement on the basis outlined or on the basis of her unilateral actions.
[250]
I agree with the submissions of the husband in relation to this issue. In my view the parties did nothing more than to isolate some of their assets in accounts and shares said to be for the child. The wife has been able to access the funds in accounts held in trust for the child notwithstanding that she subsequently transferred shares of her own to the trust. Such dealings are inconsistent with the role of a trustee. Further, and in my view more telling, is the fact that the trust has never filed a tax return. All of the income (generated in Australia) is returned in the wife's tax return.
If the parties chose to continue to keep part of their assets in special funds which they put aside for the child then that is a matter entirely for themselves and the way in which they organise their financial affairs.
Further matters arise in relation to the terms of any trust said to exist. Is the wife, for example, to be taken to be the appointor of the trust? She certainly acts as if she has that power. What law is applicable to the trust monies in Luxembourg? Is that where the trust, if it exists, was created? These are but a few of the questions raised by the facts in this case.
Additionally regard could be had to s 85A of the Family Law Act. If the "trust" exists is it a post-nuptial settlement to which s 85A of the Act applies? If it were such a settlement then the Court has power to make orders which deal with the property of such settlements.
I agree with the submissions of the husband in relation to section 85A. If there be a trust then it will probably fall within the category of settlements which can be the subject of orders under section 85A. In this case it would be appropriate to deal with the assets of the settlement by having the wife retain the assets in the "[Child's] trust" in Australia and the husband retain the funds in the Luxembourg account held in the child's name.
[251]
Whether the parties were "separated" between July 1994 and December 1996
[252]
The wife's submission on this issue are as follows:
[253]
The husband maintained that he and the wife did not separate between 1994 and 1996 as asserted by the wife. The wife's assertion of a separation is in W1, paras 135 and 151. The husband's evidence on the issue is in H, para 61. However, Exhibit 6 to the wife's affidavit is a copy of a letter written by the husband to [Mr JK] on 5 December 1999. In paragraphs 3, 4 and 6 the husband acknowledges that the wife wanted a separation in 1994, that the parties decided to reconcile in late 1996 and in paragraph 6 refers to the fact that the parties had been separated in the meantime. It is submitted that the husband's affidavit evidence and his insistence in cross examination that the parties were not separated between 1994 and 1996 is false and that what the husband said in Exhibit 6 to the wife's affidavit is consistent with the wife's position and is the correct position.
[254]
The husband's submissions on this issue are as follows:
[255]
A further illustration of the wife's lack of credibility arises from the issue of whether the parties were "separated" during the period May 1994 to December 1996. The wife says in her affidavit that she separated from the husband shortly before [the child] was born and that they reconciled in December 1996 (see paragraphs 12, 14, 135 and 152).
[256]
The husband contends that while pregnant with [the child], the wife developed gestational diabetes and so the wife returned to live in Sydney while due to his employment with [Z Company] he remained in Paris until his retirement in December 1996. Although the parties were residing apart, the husband did not consider this to be a formal separation (see paragraphs 58 to 61).
[257]
The husband's evidence is that he provided regular financial support to the wife during this period, and that he visited the wife and [the child] frequently; when he did so, he stayed at the [E] Road property and maintained a conjugal relationship with the wife.
[258]
The wife's evidence was that the husband visited every couple of months but later in cross-examination the wife conceded that there were occasions when he had visited twice in the same month. With respect to the transfer of funds by the husband, the wife maintained that she arranged for these funds to be applied toward maintenance for [R Lockie] and in payment of the husband's legal fees associated with the ongoing dispute with his former wife, [R Lockie].
[259]
It is respectfully submitted that the conduct described by the parties during this period is not the conduct of parties who regard themselves as "separated" and, therefore, the Court is invited to find that the wife's claim that the parties were "separated" between May 1994 and December 1996 is completely incredible.
[260]
Further more, it was put to the wife that in originally giving evidence that the husband only visited her and [the child] every couple of months, this was another attempt on her part to skew the facts in her favour and diminish the husband's contributions.
[261]
This matter is very difficult to determine. The husband for his part says he did not understand the relationship between him and the wife to have broken down during this period. I do not have a good understanding from the wife's evidence why she concluded the parties were separated during this period. The wife acknowledged that the husband had paid her regular monthly payments for the support of the child and herself. She said that part of the funds was then paid by her to meet the husband's commitment for maintenance of his child from his former marriage and also his former wife. On the other hand, the wife relied on a letter which was written by the husband to a witness in the wife's compensation case where he referred to a separation in 1994 and reconciliation in late 1996. That letter clearly suggests a concession by the husband that there was a separation during that time.
The submission of the husband pointing to the description of the way the parties conducted themselves and their family business is more consistent with the parties still regarding themselves as a family unit rather than separated. In particular, why would the wife be paying the husband's former wife funds if she was separated from the husband? I conclude that she probably would not do so if she were separated form the husband. On the other hand, separations do not have to be acrimonious.
Ultimately on balance I conclude that the parties probably were separated as alleged by the wife consequently find that the parties were separated between July 1994 and December 1996. Clearly during this period the husband continued to make significant contributions as did the wife.
[262]
Disposition of funds by Husband post separation and the extent of funds presently held by him in bank accounts and disposition of funds by Wife post separation.
[263]
The husband's submissions on this issue are as follows:
[264]
At paragraph 119 to 142 and 152 to 158 of his affidavit, the husband deposes to his conduct and events post-separation.
[265]
It respectfully is submitted that the husband was not seriously challenged on this aspect of his evidence in cross-examination.
[266]
On the other hand, the wife appears to have acquired shares and investments in her name (a substantial number of these assets allegedly held on trust for [the child]). The husband contends that wife has not adequately explained (except in the vaguest of terms) the source of funds for these assets. Accordingly, the Court is invited to find that these assets have been derived from funds arising out of matrimonial assets (the majority of which are funds generated by the husband's employment and or assets at the commencement of the relationship).
[267]
The wife, in line with the allegation that she managed the parties' finances during the marriage, continued to apply the matrimonial finances according to her will post-separation and has given no, or very little, accounting for same.
[268]
The wife's submissions on this issue are as follows:
[269]
The husband says at H para 119(d) that he held various bank accounts at the date of separation, which he asserted to be July 2000, and claimed that the total balance of the accounts was approximately $188,993. He also said at H para 119(f) that the [T] Trust held funds totalling $242,029 at that time. The husband has failed to explain in his affidavit what became of the funds referred to in paragraph 119(d). Following the separation of the parties the husband opened a bank account with Westpac in Australia (H para 123). He also refers to closing a UBS Warburg Cash Management Trust Account in early 2002 in H para 134. However, no explanation is given as to what has become of the funds referred to in para 119(d). The husband says at H para 142(d) that he had total balance in his bank accounts of $275,090 at 19 February 2006 but the balance sheet in Exhibit X3 shows that the husband now has only modest funds in bank accounts compared with the balances alleged in paragraphs 119 and 142 of his affidavit. It is submitted that the husband has the onus of establishing what has become of funds accumulated during the marriage and held by him at the date of separation. The disposition of those funds is entirely within the knowledge of the husband. He gave evidence that he has statements of his bank accounts among his documents with his solicitor but did not in his affidavit or otherwise take any steps to explain what has become of the substantial funds held by him at the date of separation.
[270]
The husband's submission in response was as follows:
[271]
It was always open to the wife to cross-examine the husband concerning the amounts referred to as being held by him on deposit when the parties' separated and again in 2006 when his affidavit was sworn. In the absence of challenge, no adverse inference should be drawn. What is apparent, however, is that the husband has approximately $51,000 on deposit (Balance Sheet - Items 11 and 12) and a further $76,110 was held by his solicitors (Balance Sheet - Item 30). In addition, the husband has paid $91,114 in legal costs and disbursements (Balance Sheet - Item 43). The Court is asked to infer that the husband has used his cash funds referred to in his affidavit to meet his legal costs and in addition some part of his living expenses.
[272]
On the wife's evidence the parties separated permanently on 3 October 2000 (see paragraph 165 of the wife's affidavit). She says the husband at that time left the former matrimonial home and commenced to live at the E Road property where he remained until April 2001 (paragraph 166 of wife's affidavit).
The wife claims that following the separation the husband continued to withdraw funds from the parties' joint account (paragraph 167 of the wife's affidavit). She says the E Road property was vacant from April 2001 until July 2003 and during this time she paid all the outgoings and maintenance (paragraph 173 of the wife's affidavit).
The wife said that since separation she has drawn on her savings and investments to meet ongoing living costs for herself and the child (paragraph 246 of wife's affidavit sworn 17 December 2007). As at 28 September 2007 her legal fees and disbursements, which she has paid from her Westpac account, total $148,481.95 (paragraph 247 of wife's affidavit).
The wife said she applied $43,365 (inherited by her from the estate of her late father in 2002) mostly to making improvements to the E Road property, the payment of living expenses and travel expenses. She said the improvements effected included removal and then rebuilding of rear stairs, having turf laid, having ceilings painted and clearing the garden (paragraph 202 of wife's affidavit).
The wife later purchased her brother's share in the E Road property for $270,000. She contributed $90,000 in savings, being her compensation monies. At paragraph 200 of her affidavit sworn 17 December 2007 the wife said repairs to the H Street property where being carried out and included bathroom plumbing, having parts of the front and back of the house rebuilt (such as the stairs) and general maintenance.
The husband said the wife arranged for expensive life policies with NRMA to be paid from the regular funds which he transferred to her. He said he paid these premiums until 2002 despite the parties having separated (see Ex RGL 35, paragraph 75 of the husband's affidavit).
In early 2002 the husband caused the UBS Cash Management Trust to be closed. This account was held in the name of T Trust and at the time of closing had a balance of about $2,133.24. The husband is unclear as to which account these monies where subsequently deposited to.
[273]
I agree with the submission of the husband which says that the wife has failed to account for how the assets of "[the child]" have been accumulated post separation. I am left with no real understanding of how the wife has been able to accumulate assets to the value of $313,618 in Australia largely since 1999 when she received her compensation money. Otherwise, I conclude that the parties have explained what has happened since the separation in relation to the assets and resources which they held at that time of separation. I feel reasonably confident that neither party has used any of those assets or resources in any manner which is inappropriate or wasteful.
[274]
Payments made by husband to or for the benefit of R and H Lockie
[275]
At paragraphs 17, 28, 39, 41, 49, 115 and 131 of the husband's affidavit, he deposes to the extent of payments made by the husband for the benefit of [R] and [H Lockie]. There is no doubt that the husband entered his relationship with the wife with obligations to his former wife and daughter of that marriage. The issue, however, is not that he met those obligations but rather whether having met those obligations what was his financial contribution to this marriage. On any view of the facts, it was substantial and significantly greater than that of the wife in these proceedings.
[276]
The Husband was cross-examined about certain aspects of his evidence at length.
[277]
See also Exhibit W-11: Wife's list of Expenses Prepared by the Wife for [L property]. The husband accepted in his evidence that he paid for all the expenses associated with this property even though he owned it jointly with [R Lockie].
[278]
However, the husband respectfully submits that in the overall scheme of his marriage to the wife, any benefits derived from the husband by [R] and [H] are of little consequence.
[279]
During the cohabitation of the parties the husband made substantial payments for the benefit of his former wife and daughter [H]. Apart from payments of money made to his former wife the husband conceded in cross examination that substantial parts of his salary package while living in Australia went to benefit his former wife and daughter. These parts of his package included the rent for the [apartment] where they lived, the utilities in relation to that property, the provision of a motor vehicle, all expenses paid by the husband's employer which was used by his former wife, payment of [H's] school fees to the extent of 40%, and the entertainment allowance. Accordingly, while all of these matters were evidence of the husband's salary package they were not contributions which he can rely upon as being to the benefit of the parties to the marriage in this case since they were applied for the benefit of his former wife and daughter. In H para 17 the husband describes his salary package and its components. He also gives evidence, confirmed in cross examination, that even part of his salary was not paid to him in Australia but was paid to a bank account with Societe Generale in Paris which was a joint account with his former wife which was available to her to draw upon. The husband acknowledged in cross examination that the amount payable to the account in Paris might have been F4,000 per month but he did not remember but accepted that it was most likely that he paid F1,200 per month to each of his wife and daughter's [...] accounts. He also paid for the entire period of cohabitation and continues to date to pay all the outgoings in relation to the property known as [L property] which he jointly owns with his former wife. That is, he not only pays his share of the outgoings in relation to that property but he has paid her share as well. The wife in these proceedings kept an account of those expenses for some years which is now Exhibit W11.
[280]
When asked as to amounts paid on the continuing basis to his former wife and daughter for their support the husband claimed lack of recollection and aid in answer to questions on this topic that there were documents available in exhibits which provide the detail, or words to that effect. Evidence concerning this matter is contained in Exhibit 36 to the wife's affidavit. That exhibit does not include the schedule of payments which is the first page of the exhibit which was created by the wife. The first document in Exhibit 36 in English is a translation of a document from [Z Company] dated 26 August 1998. By this document [Z Company] deducted from the husband's salary F162,582 between March 1993 and October 1994 and paid it to his former wife. If one uses an exchange rate of F4=$A1 as an average throughout that period then the value of the payments made to the husband's former wife is $40,645. The exchange rates are Exhibit RGL58E to the husband's affidavit. The next document in English is a translation of part of the orders made 28 March 1990 from the Tribunal in [...] which dealt with the divorce proceedings. These orders refer to a letter dated 12 February 1990 from the husband which states that between October 1986 and the date of the letter he had paid his former wife [local currency]1,069.610 in capital and [local currency]657,024 in fringe benefits. The capital amount, if converted at the rate of [local currency]5=$A1 is equivalent to $213,922. The fringe benefit amount is equivalent to $131,405.
[281]
A further document in Exhibit 36 is the husband's application for dissolution of marriage in Australia. In Annexure "A" to that application paragraph 16(a) the husband records payments by way of child maintenance (as distinct from capital or spouse maintenance) which total $30,621 for the period referred to together with tuition fees and books and a monthly payment of $128 to a savings account for [H]. A further part of Exhibit 36 is a letter from Rockliffs Solicitors dated 5 December 1990 apparently acting for the husband to which is attached a schedule of payments some of which have already been referred to above and which indicates deposits being made into a home savings account in France for the husband's former wife and daughter. A further document in Exhibit 36 is a letter from the St George Bank Ltd dated 28 August 1998 confirming payments of $800 per month from 30 May 1991 to 30 October 1992, being a total of $13,600 and further monthly payments from 30 November 1992 to 9 March 1993 (except January) which total $2,400.
[282]
Exhibit 13 to the affidavit of the wife shows that the husband paid his former wife the sum of F200,000 on 28 December 2000, that is shortly after separation. At H para 121 the husband gave evidence that this sum converted to $49,517. Accordingly, having regard to this evidence it is clear that substantial amounts of the husband's income and capital have been paid to his former wife and daughter which reduces the weight to be given to his contributions by way of income during the course of his marriage to the wife in these proceedings.
[283]
At paragraph 36 of her affidavit sworn 17 December 2007, the wife asserts that the husband paid R's 50% share of the expenses, outgoings and loan repayments in respect of the L property. This is conceded by the husband. The wife says at paragraphs 127 and 130 of her affidavit that on 19 December 2000 the husband and R signed an agreement of compromise (protocol d'accord) which discharged prior obligations the husband had under the orders made in March 1990 and maintenance for H. H is now 29 years of age. At paragraph 28 of his affidavit the husband said he had paid his former wife almost AUD$3,000 per month and this maintenance was later reduced to AUD$1,500.
The husband contends that as part of the property settlement with his former wife he was ordered by the Court to sell the Island property and purchase an apartment for his former wife. He was ordered to pay AUD$1,500 (6500FF) per month to be reduced to AUD$1000 (4300FF) per month after the above property order was fulfilled. Ex RGL 15 to the husband's affidavit is a copy of the Court Orders (paragraph 39 of the husband's affidavit). However, at paragraph 41 of his affidavit, the husband said that following discussions with the wife regarding the orders for the former wife, he did not purchase the apartment and in 1992 he unilaterally reduced the child support to AUD$842 (3200FF) per month. I accept the husband's evidence in relation to that allegation.
The husband says that on 2 July 1990, at the request of the wife, he transferred the sale proceeds from the Island property, which were to be used for the purposes of fulfilling the divorce order, to the joint account in the parties' name with the Societe Generale in London (paragraph 42 of the husband's affidavit). A copy of the said letter and handwritten notes by the wife relating to the transfer is Ex RGL 16 to the husband's affidavit.
The husband said in 1993 his former wife commenced proceedings in France for the arrears of child support and obtained a garnishee order against the husband for the arrears. The husband proceeded to pay child support in accordance with the original orders of the divorce Court until H achieved 18 years of age (paragraph 49 of the husband's affidavit). Exhibit RGL 18a to the husband's affidavit is a copy of the garnishee notice.
[284]
I agree with the submissions of the wife that during the cohabitation the husband contributed very significant sums of money to the support of both his daughter and his former wife. I agree that such a conclusion must weigh significantly on the assessment of the parties contributions.
[285]
Extent of payments made by the husband to maintain the French properties during cohabitation
[286]
The husband referred to the submissions made in relation to the last issue as set out above.
The wife's submissions on this issue are:
[287]
As submitted above the husband made payments during the course of cohabitation to maintain his property at [E] and [L]. Some of the expenses paid with respect to the latter property are set out in Exhibit W11. The evidence does not otherwise permit quantification of the amounts paid to maintain the French properties.
[288]
In relation to the L property, the wife says that the husband paid all expenses, outgoings and loan repayments in relation to that property, including R's 50% share (paragraph 36 of the wife's affidavit).
The wife tendered a document, which was in her handwriting and itemised, the expenses of the property L. The wife said she recorded this information at the request of the husband during the property disputes between the husband and his former wife R. The husband whilst not necessarily agreeing with the wife's stated reason for creating the document, did agree that the document was created and he accepted it would be correct. That document shows that although the husband owned the property with his former wife R, he paid all of the expenses in relation to the property.
The conclusion must be that the husband made significant contributions towards the French properties during the cohabitation.
[289]
Extent of past and future care and financial support of the child after separation
[290]
Following his retirement from [Z Company], the husband says that he made a significant contribution as a homemaker and parent (see husband's affidavit paragraphs 23,27,90,105,106,107,159-191). Prior to his retirement, there is little doubt that from the birth of the parties' daughter [the child] in 1994, the wife was her primary carer until the husband returned to Australia in about December 1996. Thereafter, it is probable that both parties have an exaggerated view of their input as homemakers and parents compared to the input made by the other party. Overall, the Court, it is submitted, should find that during the period of the parties' cohabitation, while the wife's contribution as homemaker and parent was greater than that of the husband at least from the end of 1996, the husband's contribution while less than that of the wife's, was significant.
[291]
Since separation, the husband has been providing financial support to the wife to assist with [the child's] expenses, initially in the sum of $1,400 per month but later $900 per month. In addition, the husband has been paying for some of [the child's] expenses such as clothes, shoes, child psychologists, etc. (see paragraph 124 of the Husband's affidavit).
[292]
The husband cares for [the child] when she spends time with him, and despite the difficulties involved with contact in the past, the husband has remained involved in all aspects of her care and medical treatment since separation.
[293]
The husband's evidence in cross-examination regarding his future plans for travel was clear and unambiguous: he intends to devote his time to his daughter and will defer such plans indefinitely regardless of any taxation consequences.
[294]
With respect to the husband's past and future care of [the child] following separation it is submitted that on any view of the evidence the wife has been the major carer of [the child] since separation and the husband has had limited and irregular contact with [the child]. The husbands' absences from Australia have necessarily limited his availability to care for his daughter. The dates of his entry and exist from Australia are set out in Exhibit H16. The husband's financial support for [the child] is limited to a payment of child support in the sum of $208 per week. This is so notwithstanding the special health needs of [the child] which cost $100 per month (W1, para 243), her dental orthodontic needs (W1, para 240) and her attendance at private schooling having been enrolled at her current school by both parties in 1999.
[295]
The evidence supports a finding that the wife has been the predominant carer for the child since the separation in 2000. The husband has paid financial support for the child. He paid $1,400 per month and then reduced that payment to $900 per month. The wife has been responsible for the financial support of the child with the assistance of the husband's monthly contribution. The wife has paid the school fees for the child from her own resources; however, it was open to her to draw on the fund described as "[the child's] trust money".
It seems clear that there are considerable expenses associated with the care of the child. She has significant ill health which has been expensive for the wife. She attends a private school. The husband did say during the trial that he would consider contributing to the school fees for the child; however, he had never done so. That statement of the husband really does not advance the matter of assessment of contribution to the support of the child, past or future.
It seems clear that in the future, whilst the husband might strive to spend more time in the caring for the child, there appears to be some barrier in his being able to achieve this quickly. The husband was blaming of the wife for having prevented his spending the amount of time he would have liked to spend caring for the child post separation, however, that concern was not explored, for good reason, in the hearing before me.
[296]
The wife's submissions in relation to these issues are as follows:
[297]
The husband set out in his affidavit at H para 119 his property and investments at separation. He asserted in his affidavit that separation occurred in July 2000 and accordingly the balances set out presumably relate to July 2000. If it is intended that they relate to October 2000 then the husband's evidence at H para 119(d) is the only evidence concerning his bank balances at separation. Following separation, in November 2000 the husband opened a bank account with Banque Transatlantique. This is shown by Exhibit W8. The husband gave no evidence of opening this account in his affidavit and denied all knowledge of it in cross-examination. Nowhere in the husband's evidence does he explain how it was that he opened this account, what was the purpose of the account nor did he account for the funds which the conditions of the account require be the minimum balance to be held in the account as appears from Exhibit W8 and Exhibit 18 to the wife's affidavit.
[298]
The husbands' submissions in relation to these issue are as follows:
[299]
At paragraph 119 to 142 and 152 to 158 of his affidavit, the husband deposes to his assets and liabilities at separation.
[300]
It is respectfully submitted that the husband was not seriously challenged on this aspect of his evidence in cross-examination.
[301]
In any event, the husband respectfully submits that as a consequence of the Court's findings on credit, wherever there is a dispute on the facts (except where concessions have been made by the parties), the Court ought to accept the husband's evidence over that of the wife.
[302]
The husband's submissions in reply are as follows:
[303]
It is submitted that nothing sinister turns on upon the husband's evidence concerning the Banque Transatlantique account about which he was cross-examined at some length. The husband does operate an account at Banque Transatlantique in Paris. His evidence was that he did not recall this account at all.
[304]
The wife's submissions in response on this issue are:
[305]
In reply to paragraphs 50 to 52 of the husband's submissions it is submitted that the husband was totally unable in his evidence in cross examination to give a clear account of the extent of his savings and investments at separation, particularly his funds held in bank accounts. As with most other aspects of his evidence as to his financial affairs his evidence on the matter was vague and characterised by an inability to provide any recollection of the particulars of the funds and accounts held by him at separation.
[306]
The husband sets out at paragraph 119 of his affidavit his property and investments at separation. I have considered earlier in these reasons under the heading "Disposition of funds by the husband post separation" details of the evidence relating to the issue being addressed here. In addition to that material I add the following.
The wife said in her evidence the husband is the sole director and shareholder of a company known as T Pty Ltd, which traded shares and options (paragraph 175-176 of the wife's affidavit). During cohabitation the husband established a bank account in the name of T Pty Ltd with the Indosuez Bank Gibraltar and in August 1993 the wife says the husband transferred the funds from the sale of the Island property into this account in the name of T Pty Ltd (paragraph 177-178 of the wife's affidavit).
The wife further said that in October 2000 she asked the husband, "Do you still have the [T] funds in Indosuez Gibraltar?" to which the husband replied "Yes" (paragraph 189 of the wife's affidavit). She said the husband subsequently informed her that the amount converted to $237,743 (paragraph 190 of the wife's affidavit sworn 17 December 2007). On 4 December 2000 the wife says the husband requested a transfer of funds in the sum of 200,000FF (AUD$50,000) from the account in the name of T Pty Ltd with the Indosuez Bank Gibraltar to his Credit Lyonaiss account in Paris. She says she is not aware of how the funds were thereafter disbursed nor has she been provided with statements in relation to this particular Credit Lyonaiss account held by the husband (paragraph 180 of the wife's affidavit).
I do accept the husband's evidence in relation to his assets at separation and how he has applied those assets since that time. I have referred extensively to his evidence on this subject earlier in these reasons. The documents identified by the wife as Exhibit W8 and annexure 18 to her affidavit do not disclose that the husband ever deposited funds to the account. I accept the husband's evidence that he never deposited any funds in that account. I agree with the submissions of the husband that there is nothing sinister about the account.
[307]
The health of the parties and the Wife's capacity to work
[308]
The wife's submissions on this issue are as follows:
[309]
It is submitted that the husband is in good health. He makes complaint of a back condition but there is no medical evidence to corroborate his complaint.
[310]
The wife suffers a number of conditions which are serious and appear to be chronic. She relies upon the affidavit of Dr [S] sworn 16 November 2006. Dr [S] acknowledges the complex medical history that the wife has and which is summarised on pp1 and 2 of his report which is Annexure "C" to his affidavit. It is clear from his report that the wife continues to have a number of disabling symptoms from her various illnesses. Despite cross examination Dr [S] was not persuaded to change any of his conclusions reached in his report. Dr [S] is of the opinion that the wife cannot return to any form of gainful employment and she has a guarded prognosis requiring close clinical surveillance due to the risk that she may develop other disorders. He confirms her need for ongoing therapy of various kinds on p5 of his report which has financial consequences for the wife as deposed in W1, para 241.
[311]
The husband did not make a submission on this issue. He did however, address the matter when considering the section 75(2) matters.
In her affidavit sworn 17 December 2007, the wife said that in April 1991 the husband sustained a back injury, in the form of a broken disc, at his workplace (paragraph 61). The husband said it occurred in or about March 1991 (paragraph 45). The wife said the husband required surgery. The husband resumed his employment after six weeks. Thereafter he received quarterly workers' compensation payments (paragraph 61). The wife said the husband will continue to receive these payments during his lifetime; however, she is unaware of the quantum of these or of any other payments (paragraph 61).
The wife at paragraph 107 of her affidavit said that during 1989 the husband's capacity of movement was restricted by what the husband informed her to be (and what she believed) was back pain. At paragraph 112.5 of her affidavit sworn 17 December 2007 the wife said following the surgery the husband required care from her while he was recovering. However, at page 18 paragraph 28.14 of the wife's written submissions it is submitted there is no medical evidence to corroborate his back complaint and it is submitted the husband is in good health.
Counsel for the wife submits the wife, as indicated by the evidence before the Court, has a complex medical history which is acknowledged by single expert Dr S in his report (especially at pages 1 and 2). At page 19 of the written submissions Counsel for the wife contends that during cross-examination of Dr S he was not persuaded to change any of his conclusions reached in the report. He was also of the opinion the wife was not fit for any form of gainful employment and requires ongoing medical supervision to ensure she does not develop other disorders. At page 5 of his report he reiterates the wife's need for ongoing therapy to treat her conditions and such treatments will have financial consequences for her as claimed by the wife at paragraph 241 of her primary affidavit sworn 17 December 2007.
At paragraphs 207-223 of the wife's affidavit she details the current situation with her health and events regarding her health in the past. She said that she still suffers from pain and restriction of movement in her shoulder and back. She has headaches and neck pain as a result of the injuries suffered in the motor vehicle accident in December 1995.
[312]
The wife was diagnosed with gestational diabetes in 1994 during her pregnancy with [the child]. In 1997 she was diagnosed with type 2 diabetes mellitus.
[313]
In December 1995 the wife was involved a motor vehicle accident. She was left with soft tissue injury involving the lower cervical and lower lumbar spine, a left lower rib fracture and left acromioclavicular joint strain. The wife says that she has continued to experience recurring pain and limitation of movement stemming from this accident.
[314]
She has a long history of migraine which may or may not be exacerbated by the injuries sustained in December 1995.
[315]
In October 2003 she suffered a subarachnoid haemorrhage and was an inpatient at RNSH. Tests found that there was no aneurism present and that the bleed was benign and tends not to recur. The wife says that since the haemorrhage she has suffered from recurring viral infections such as herpes zoster of the left buttock and post-herpetic neuralgia and has suffered from recurring right (non-herpetic) corneal ulceration and recurrent left corneal erosions for which she undergone recurrent punctal occlusion. That has not given her significant improvement. She requires recurrent topical treatment for symptomatic control of the recurring corneal ulceration and erosions.
[316]
Following the haemorrhage the wife has suffered from moderate-severe depression;
[317]
In May 2004 the wife was found to be depleted in her body's iron stores and presenting with severe fatigue and lethargy. It was subsequently found that the wife had a small bowel angiodysplasia and following this the wife has been on long term iron supplement therapy.
[318]
In April 2005 the wife suffered a left lower rib fracture and an injury to her left wrist joint following a fall from a chair. The wife suffers from continued lower back pain notwithstanding imaging ruling out possibility of hairline sacral fracture.
[319]
As at the time of the preparation of the report the wife's current symptoms are recurring (at times severe) dizziness, vertigo and nausea. The symptoms have continued despite treatment. The wife appears to have undergone extensive specialist evaluations regarding her conditions.
[320]
She continues to experience recurring lower limb migratory myalgia(s) in the small joints in both of her hands and has experienced recurrent symptomatic bilateral flexor carpiradialis tendinitis and had received intralesional corticosteroid treatment for her joint pain.
[321]
The wife stated that she experiences recurring bilateral patellofemoral arthrosis, recurring pain in the rotator cuff of the left shoulder and lower cervical and lower lumbar pain.
[322]
The wife told Dr S she felt that she was controlling her depression well but could become very easily overwhelmed if new tasks arise.
On page 5 of the report the following appears:
[323]
There is slight discomfort to palpation over the radial border of the volar surface in the respective wrist joints. General examination is otherwise unremarkable.
[324]
At this time I (like a number of my colleagues) are unable to offer a unifying diagnosis to [the wife's] symptoms complex..."
[325]
The report notes at page 5 that the wife was employed in the financial services sector during the 1980's and Dr S is of the opinion that the
[326]
"severity and relapsing nature of [the wife's] various conditions would preclude [the wife] returning to any form of gainful employment for which she might be reasonably qualified by education, training or experience either in a fulltime or part-time capacity....At this time the prognosis must remain somewhat guarded. ...Any assessment of cost of further /ongoing treatment is not possible. Certainly in the short-long term, [the wife] requires long term iron supplement therapy, possible long term antidepressant therapy, the topical ocular therapy."
[327]
The evidence before the Court relating to the parties' health has largely related to the wife's health. The evidence touching the wife's health is referred to in the submissions tendered on behalf of the wife. Oral evidence in the case also addressed the issue of the wife's health. I accept that the wife does not have any reasonable capacity to work for remuneration in the future. I conclude that unless there was a radical change in her health, which is not predicted by the medical evidence, it is most unlikely she will be in a position to earn any meaningful remuneration.
The husband has not worked for many years and there is no serious suggestion that he should return to some form of employment. He receives a pension from France which I understand is his main source of income.
[328]
The husband's absences from Australia, both during the marriage and subsequent to separation and the source of funds for those trips and the source of funds relied on by the husband during those trips
[329]
At paragraph 266 of the wife's affidavit she said that from the time the parties separated in 2000 until 2006 the husband has lived in France for periods of up to 7 months each year and those dates were as follows:
6 November 2000 to 2 December 2000;
4 April 2001 to 13 October 2001;
March 2002 to September 2002;
April 2003 to December 2003;
27 May 2004 to 12 July 2004;
27 September 2004 to 25 November 2004;
27 May 2005 to 21 September 2005;
October 2006 to December 2006;
8 to 25 October 2007.
The times the husband was away from Australia following separation are set out also in Ex 16.
At paragraph 39-40 of her supplementary affidavit sworn 29 October 2008 the wife said that in addition to the dates set out in paragraph 266 of her primary affidavit the husband was in France from 15 September 2008 to 11 October 2008. She says the husband failed to provide her with details as to when he is departing Australia and when he will return. Thus, this cause the time the husband spends with the child to be irregular and subject to change without notice.
The husband's submissions on this issue are as follows:
[330]
The list of absences by the husband from Australia set out in paragraph 266 of the wife's Affidavit is incorrect.
[331]
Exhibit H-16 comprises the Department of Immigration records which evidence the dates and periods during which the husband was absent from Australia.
[332]
So far as the funding for such trips are concerned, the husband relies on the evidence contained in his affidavit and his answers in cross-examination regarding his income and the terms and benefits of his employment with [Z Company] which enabled him to travel free, and subsequent to his resignation, at a significantly discounted price.
[333]
As already referred to above, the husband's evidence in cross-examination regarding his future plans for travel was clear and unambiguous: he intends to devote his time to his daughter and will defer such plans indefinitely regardless of any taxation consequences.
[334]
The wife's submissions on this point are as follows:
[335]
The husband's absences from Australia following separation are now set out in Exhibit H16 and are not the subject of controversy.
[336]
The first issue which arises is the number of occasions the husband has been in Australia since the separation. This issue has been resolved with the tender of exhibit H16. That document discloses the following exit and return dates for the husband extracted by the parties from the records produced to the Court by the Department of Immigration:
6/11/2000 to 2/12/2000;
4/4/2001 to 30/6/2001;
13/7/2001 to 11/9/2001;
22/3/2002 to 7/9/2002;
28/4/2003 to 1/12/2003;
27/5/2004 to 12/7/2004;
27/9/2004 to 26/11/2004;
27/5/2005 to 21/9/2005;
24/10/2006 to 28/11/2006;
8/10/2007 to 25/10/2007;
15/9/2008 to 10/10/2008.
This information is relevant because it helps to determine the future capacity of the husband to provide time for the child. The parties have agreed on the orders to be made for the future care of the child and orders were made by me immediately before the trial commenced. Those Orders provide for the child to spend frequent and regular time with her father. The orders are set out earlier in these reasons. I should also say at this point that the husband in his oral evidence said he would put the child's interests ahead of taxation concerns which might keep him out of Australia for more than six months each financial year.
[337]
The assets, liabilities and resources of the husband's de facto partner, Ms A, and the extent to which the husband has contributed to same and/or the extent to which Ms A's assets, liabilities and resources constitute a financial resource to the husband
[338]
The husband's submissions on this issue are as follows:
[339]
As already referred to above, the husband and Ms [A] in their respective evidence were very clear about the way in which they deal with the financial aspect of their relationship. That is, apart from the odd occasion when one has made a short-term loan to the other of rather unsubstantial amounts, their personal financial affairs are kept entirely separate except for living expenses, which are contributed to equally.
[340]
Although in cross-examination lines of questioning were directed toward issues of disclosure, it is submitted that these matters are of little relevance as against the very unambiguous (and unchallenged) evidence given by the husband and Ms A as to the financial aspects of their relationship.
[341]
The wife's submissions on this issue are as follows:
[342]
The assets, liabilities and resources of the husband's de facto partner are not fully disclosed. They are relevant to the financial circumstances of the cohabitation between the husband and his partner and also are relevant to a consideration of the extent to which the husband's partner represents a financial resource to him. He has been in a lengthy apparently stable relationship with his partner since 2002, some six years. The Financial Agreement between them, which is Exhibit 41 to the wife's affidavit was apparently made in 2004 and sets out a list of property held by Ms [A] at that time. No values are provided for the property referred to. When attempts were made in cross examination of Ms [A] to ascertain any changes in her financial position Ms [A] refused to provide answers to the questions asked. This is consistent with the approach taken to this issue on the husband's part whereby in his Financial Statement he swore 20 October 2008 he failed to provide the information required at item 17 concerning income earners in his household. Further, Ms [A] swore an affidavit in the proceedings most of which was not read owing to the resolution of the parenting issues. This affidavit did not provide any information as to the assets and resources of Ms [A] although it provided some limited information concerning a sharing of expenses and a bank account which the parties to that relationship use. It is submitted that the husband was obliged to provide up to date information in his case as to the financial position of his partner not simply because of the need to reveal the financial circumstances relating to the cohabitation of the husband and his partner but also because she must represent a significant financial resource to him given that they appear to be in a stable relationship of some six years' standing.
[343]
The Financial Agreement between the husband and Ms [A] is plainly defective in its terms since it refers to the Family Law Act even though the parties to the agreement are not married and does not contain certificates of advice as required by the Property (Relationships) Act 1984, which is incorrectly referred to in paragraph 12 of the agreement. The agreement will not provide either party to it with any defence to proceedings for adjustment of property interests under the Property (Relationships) Act 1984 should the relationship terminate.
[344]
The husband's submissions in reply say as follows:
[345]
Ms [A] gave evidence that she was a self-funded retiree. She and the husband share their living expenses. Ms [A] swore an affidavit and presented herself for cross-examination.
[346]
The husband says that in or about December 2002 he commenced a relationship with Ms A and subsequently moved to coastal New South Wales to reside with her at her home (paragraph 140 of the husband's affidavit). On 1 April 2004 the husband says he and Ms A signed a De Facto Relationship Contract and subsequently a Cohabitation Agreement (paragraphs 140 and 182 of the husband's affidavit). Counsel for the wife submitted that during cross-examination the husband said he commenced living with Ms A in September 2003 and this is contrary to paragraph 181 of his affidavit. There the husband asserted they commenced cohabitation in January 2003. This is contrary to ex 41 of the wife's affidavit. That exhibit is the financial agreement between the husband and Ms A which recites they commenced living together from December 2002 (see the wife's submissions at page 3, paragraph 8).
Ms A swore an affidavit on 16 February 2006. She operates the O Business which is in the coastal area and works causally at a shop. She owns a property in coastal New South Wales, about 3.5 hours from Sydney. She says cohabitation commenced in or about September 2003 and the relationship between she and the husband commenced in or about December 2002. In or about mid 2004 she and the husband entered into a Cohabitation Agreement in which the parties share equally in their day to day living expenses and each pay any liability for utilities in their respective names such as car upkeep, fuel, council and water rates. Ms A said she and the husband have a joint bank account with the Credit Agricole in France and in Australia they use an account in her name with ANZ Bank. She said that, as at February 2006, the Credit Agricole account has little money in it and the ANZ account is in deficit (see paragraphs 1-5 of Ms A's affidavit). She said since cohabitation she and the husband have lived in France for about half of the year between May/June to October (paragraph 6). While residing in Australia they spend 3-4 days per fortnight in Sydney at the U Street property so that they can visit family and the husband can spend time with the child (paragraph 7).
In the hearing, this issue assumed an importance far greater than it warranted. The wife had attempted to issue and serve a subpoena on Ms A which did not comply with the directions I had made in the case in the lead up to the hearing.
The best evidence about the assets and resources of Ms A is found in attachment number 41 to the wife's affidavit and in the oral evidence of Ms A. Attachment 41 to the wife's affidavit is a document titled "Financial Agreement". It sets out the assets of Ms A as at the date of the document, namely 29 July 2004. No values are attached to the assets listed there. No details of liabilities are provided. In her oral evidence Ms A provided the information which is set out earlier in these reasons.
[347]
The funds required by the wife to provide her with an appropriate level of income to meet her expenses and the payment of expenses for the child including her private school fees
[348]
The wife's submission on this issue are as follows:
[349]
The expenses of the wife and [the child] are relevant since, pursuant to s75(2) of the Act the Court must take into account the commitments necessary for the support of each of the parties and a child that the parties have a duty to maintain. The wife has set out in her financial statement sworn 17 October 2008 commencing at Part G her estimated personal expenditure indicating the categories of expenditure and the amounts which she spends and a total amount of $830 at item 32 for all other weekly expenditure. The figure of $830 is explained in more detail at item G32 on p10 of that document. On p12 of the document at item K53 the wife has detailed other expenses which she has in relation to [the child] such as [M] College education costs, orthodontal fees, [dance] fees and [a dance] tour. The commitments necessary in relation to [the child's] schooling are also the subject of Exhibits W13, W14 and with respect to her dance lessons Exhibit W15. The wife explains at item M59 on p12 of her Financial Statement that she meets the shortfall between her income and expenditure by realising investments and drawing on savings. In other words to support herself and [the child] it is necessary that she draw on capital since the husband only pays $208 per week by way of child support. He will not contribute to the payment of private school fees notwithstanding the fact that the parties both enrolled [the child] at her present school. As the wife's Financial Statement discloses her income is $864 per week whereas the outgoings for herself and [the child] total $1,555 per week. The figure for the wife's income includes child support paid by the husband. As submitted above [the child] also has medical costs of about $100 per month: W1, para 243.
[350]
Accordingly, the wife will be required to apply some part of the capital she receives as a result of these proceedings to meet the shortfall of expenditure for herself and [the child].
[351]
The husband made no specific submission as part of primary submissions, however, in reply the husband made the following submission:
[352]
The wife led extensive evidence concerning her expenses related to her daughter. It was always open to the wife to make application for a child support departure order should she have wished to agitate this matter.
[353]
The issue of the child's school fees needs to be dealt with separately. Both the husband and the wife hold money which they say has been set aside for the child. They are unable to agree which fund of money is to be used to meet educational expenses. I have determined that the money is not held in trust for the child but rather held by the parties. The wife has failed to draw on the fund she identified as trust money to pay the child's school fees. She says the reason is that she would like the child to preserve the funds in the trust account for her later life. I assume she refers to a time after the child has attained the age of 18 years when she might use the funds to acquire a house of her own or some other similar appreciating assets. If the funds were held in a properly constructed and administered trust which was managed by an independent body it seems at least probable that funds would be able to be advanced to meet the cost of the child's schooling and other aspects of her maintenance, including medical expenses. The same is true of the monies which the husband describes as "[the child's] funds" which are under his control.
The husband has refused to use any of the money he holds for the child to pay her school fees. However, he has not provided any proper reason for doing so other than to say the wife should use some of the "[the child's] funds" controlled by her to meet that expense. The husband did say he might change his mind about contributing to the child's school fees after this case is concluded.
The evidence shows that the husband currently pays support for the child in the sum of $900 per month to the wife. The wife claimed some arrears in this payment.
The wife provided evidence of the extra curricular activities the child engaged in and the cost of same. She also provided evidence of her school fees; however, she did not provide a detailed breakdown of the other costs associated with the support of the child. She did not complete a schedule of expenses for herself and for the child in the nature required in a case where either spouse maintenance or child support is sought. She did say in her affidavit that she anticipated future orthodontic expenses for the child of about $5,200 due by the end of this year. She spends about $100 per month on the child's health expenses.
The wife in her Financial Statement filed 17 October 2008 showed her income as $575 per week and referred to note D10. Note D10 shows the wife's income sources. None of the sources include income from the child's investments in shares or interest bearing accounts, yet the wife includes that income in her income tax returns thus representing to the Australian Tax Office that the income is hers. No information is provided as to the income of the child. At item E17 (of her Financial Statement) the wife disingenuously sets out that she does not know the income of the child. These matters, inter alia, work against the credit of the wife.
[354]
Whether notwithstanding the husband's payment of child support at the appropriate rate under the legislation, the cost of care is a relevant factor for consideration
[355]
The husband relied on his submissions under the section 75(2) heading in his submissions.
The wife's submissions on this issue are as follows:
[356]
There could be no argument that the cost of care of [the child] is a relevant factor for consideration whether or not the liable parent pays the assessed rate of child support since s75(2) of the Act specifically provides that the Court take into account the commitments of each of the parties necessary to enable the party to support a child that the party has a duty to maintain as well as taking into account any child support under the Child Support (Assessment) Act 1989 that a party has provided or is to provide for the child. It is submitted that the fact that one party having the primary care of a child is required to use up capital in order to meet the expenses for the child having regard to the manner in which the parties have required that she be maintained and educated is a relevant factor in determining the outcome of these proceedings pursuant to s75(2) of the Act.
[357]
At paragraphs 360-361 of her affidavit sworn 17 December 2007 the wife said that since 2000 the husband has paid child support of $900 per month for the benefit of the child, other than for a period of 6 months in 2002 when the husband had paid $1,400 per month to assist the wife regarding the costs of counselling for the child at that time. She said that during December 2007 the husband fell in arrears of payment but as at 15 December 2007 had reduced those arrears to $1,500.
The cost of the care of the child must be a relevant matter to consider under section 75(2). It is also relevant to have regard to the amount of child support paid whether via a requirement imposed by the Child Support Legislation or otherwise (as is the case here). I have already dealt with the cost of the child's care, the support provided by the husband and the availability of trust fund money to assist in the future support of the child.
[358]
The parties tendered the draft balance sheet which was marked as exhibit X3.
On 17 July 2009 the solicitor for the wife, in agreement with the solicitor for the husband, provided an amended balance sheet by email to my Associate. The amendment was only to the total at Item 76 on the balance sheet. Exhibit X3, with that amendment, is reproduced immediately below.
[359]
Single expert valuation dated 30 March 2007 by [Mr F]
[360]
Single expert valuation dated 30 March 2007 by [Mr F]
[361]
Joint Societe Generale Compte Courant Joint [no. 50...]
[362]
Joint Societe Generale Compte sur Livret [no. 53...]
Balance at 11.11.08 after payment of $9,323 to lawyers
[366]
Deposit Indosuez Gibraltar account 2: $234,743 as at October 2000
[367]
Walker Crips Stockbrokers Limited London account [no. ...]
[368]
$12,417 applied by wife towards payment of legal costs
[369]
Furniture belonging to husband at [H] Street and [E Road]
[370]
The husband contends these are add-backs. The wife disputes these are add-backs- they are [the child's] assets. Credit Agricole Luxembourg $236,489 (€126,592) at 29.09.08 plus $613 CBA Account = $237,102
[371]
Assets held by wife in Australia allegedly in trust for [the child]
[372]
The husband contends these are add-backs. The wife disputes these are add-backs - they are [the child's] assets
[373]
$13,947 disbursements paid directly by client to providers
[374]
Value of this and following liabilities agreed subject to each party providing statements confirming current balances not less than 14 days prior to the hearing date
[375]
Values agreed subject to each party providing statements confirming current balances not less than 14 days prior to the hearing date
[376]
Westpac Lifetime Super - gross value of preserved entitlement
[377]
ING Life Superannuation - gross value of preserved entitlement
[378]
It is the wife's case that the husband's pension entitlements, having vested, are property. The wife may have the benefit of part of the spouse reversion in the event of the husband's death if she meets certain criteria, which cannot presently be determined.
[379]
The wife is only entitled to the spouse reversion of the CRAM pension if she does not meet or exceed the income threshold, which was EUR 17,552 per annum (EUR 4,388 per quarter) as at 01.01.08 per CRAM web site
[380]
There were few issues on the balance sheet, however those that were issues I determine now.
There is a dispute regarding items 40 and 41 on the balance sheet. The husband's submissions on those items are as follows:
[381]
Items 40 and 41: the Credit Agricole funds held in [the child's] name and the assets allegedly held by the wife in trust for [the child]. The issue is whether these assets ought to be regarded as an "add-back" in the possession of the Wife; and
[382]
Items 60 to 68: the husband's French pensions. The wife appears to have accepted during the course of the trial that these pensions are not property, and (if anything) they are a financial resource. However, the residual issues are whether or not the values given to the pensions by the single expert, [Mr Y], have any relevance, and to the extent that any adjustment in favour of one party or the other may be warranted as a consequence of this financial resource.
[383]
To avoid repetition, these matters will also be addressed at the appropriate headings below.
[384]
There were other submissions relied upon by the husband.
The wife's submission in relation to items 40 and 41 are as follows:
[385]
In relation to the balance sheet between the parties which became Exhibit X3, there is a dispute concerning items 40 and 41 being assets held in [the child's] name.
[386]
Item 40 in the balance sheet consists of two accounts, one being an account with the Commonwealth Bank [northern Sydney] referred to in evidence as the "dollarmite" account and the Credit Lyonaisse account in Luxemburg. These total $237,102. The husband acknowledges at H para 99 that the Credit Lyonaisse account is in the name of [the child]. Both parties are signatories to the account. The wife says that the account was established by both parties for the purpose of setting aside funds for [the child's] education. The funds in the account were sourced from funds held in an account in [the child's] name, as well as accounts in the wife's name with Societe Generale in France to which the husband contributed: W1, para 233.
[387]
In cross examination the husband conceded that he refused to agree to the wife's request that she be able to draw from the Credit Lyonaisse account, then referred to as Credit Agricole account, in order to pay [the child's] school fees. This was apparently because he did not agree to [the child] remaining at her present school notwithstanding the fact that he agreed that he had signed the enrolment form to enrol her at that school. The husband also asserted in cross examination that the wife had substantial amounts of money under her control in accounts said by her to be accounts for [the child] and that she should use those funds not the funds in the Credit Agricole account to meet education costs.
[388]
In cross examination the husband conceded that a large part of the funds in the accounts which comprise item 41 of the balance sheet came from the wife's father. The wife also acknowledged in cross examination that some of the funds in these accounts came from her father but was not able to indicate the precise amount.
[389]
In cross examination the husband acknowledged that the wife's father had made gifts of money to [the child] during his life, apart from any amount provided for [the child] upon his death, and he conceded that he was aware that his wife had placed these funds in accounts which the wife was accumulating in accounts "as trustee for [the child]". It was conceded by the husband's counsel at the hearing that the accounts referred to in W1, para 237, which are the accounts referred to in item 41 of the balance sheet, are all accounts or shares held in the name of the wife "as trustee for [the child]".
[390]
Having regard to the evidence of both parties concerning the accounts referred to in items 40 and 41, it is submitted that there is ample evidence of the intention of both parties to create a fund to be held in trust for [the child], the fund being comprised of funds in the various accounts referred to in items 40 and 41 being the accounts referred to in W1, paras 236 and 237. The parties' intention in this regard is corroborated by the manner in which the account holder is described in the title of each account.
[391]
The fact that the wife withdrew funds from an account held in trust for [the child] shortly prior to the hearing in order to assist with funding legal costs is not evidence contrary to her position with regard to these accounts since she transferred shares which she held for herself into the name of herself as trustee for [the child] to a similar value to the amount withdrawn from the account. That is, she sold some of her shares to herself as trustee for [the child] and received the proceeds of sale being of equivalent amount to the value of the shares sold. This is not inconsistent with the assertion that she is a trustee of the accounts for [the child]. It corroborates her assertion.
[392]
For these reasons it is submitted that the funds held in [the child's] name and in trust for [the child] referred to in items 40 and 41 of the balance sheet should not form part of the balance sheet. If this submission is rejected then it is submitted that the assessment of contributions for the wife which is referred to later in these submissions must be increased to take account of the contributions made to the funds in those accounts by the wife's father.
[393]
As will be seen in these reasons I have concluded that neither of the alleged "trusts for [the child]" should be treated as "trust funds" and consequently should be included in the balance sheet. However, included in item 40 is an account with funds of $613 held by the wife for the child with the Commonwealth Bank of Australia. It seems to me that account potentially falls into a different category and given the possible fallout for the parties with their daughter of having that account potentially become the property of the father I decline to include it in the balance sheet as an asset of the parties. Item 40 therefore will become $236,489.
The issue on the balance sheet in relation to items 60 to 68 was not the subject of submission by the wife. To the extent that the matters referred to by the husband should become controversial when I come to address matters of contribution and matters relevant under section 75(2) I will deal with those matters at that place.
Before leaving the balance sheet I should comment on the fact that the balance sheet includes items which the Full Court has said should not be included in the balance sheet. The matters I particularly refer to are as follows:-
[394]
Possibly the wife's legal costs. Exhibit W6 did not comply with the Rules in that it did not identify the source of the funds to pay the costs. I do think it unlikely in this case that the costs were paid otherwise than from the capital of the wife which she held at separation;
2. The husband's legal costs. It seems these are properly included as the source of the funds to pay the husband's costs was "French bank accounts". $27,700 was borrowed from Ms A;
[395]
Items 10, 12, 13, 14, 15, 16, 19, 23, and 31 all appear to be bank accounts with little to nothing by way of balance. Further, it is not clear that the source of the funds in these accounts was pre-separation savings;
[396]
Items 47, 49, 52, and 53 are debts which have not been shown to be relevant to the cohabitation as opposed to having been created post separation;
2. Items 54 and 55 are for unpaid legal costs which are not usually included in a balance sheet.
I considered having the matter re-listed to raise these matters with the parties; however, I decided that the cost to the parties of doing so was not worth the possible outcome of changes to the balance sheet.
The balance sheet therefore I determine to be as follows.
[397]
Credit Agricol Luxemburg accounts (including the child)
Balance at 11.11.08 after payment of $9,323 to lawyers
[400]
Deposit Indosuez Gibraltar account 2: $234,743 as at October 2000
[401]
Walker Crips Stockbrokers Limited London account ...
[402]
$12,417 applied by wife towards payment of legal costs
[403]
Furniture belonging to husband at H Street and E Road
[404]
Assets held in the child's name. Luxemburg account.
[405]
Assets held by wife allegedly in trust for the child
[406]
$13,947 disbursements paid directly by client to providers
[407]
Value of this and following liabilities agreed subject to each party providing statements confirming current balances not less than 14 days prior to the hearing date
[408]
Values agreed subject to each party providing statements confirming current balances not less than 14 days prior to the hearing date
[409]
Westpac Lifetime Super - gross value of preserved entitlement
[410]
ING Life Superannuation - gross value of preserved entitlement
[411]
It is the wife's case that the husband's pension entitlements, having vested, are property. The wife may have the benefit of part of the spouse reversion in the event of the husband's death if she meets certain criteria, which cannot presently be determined.
[412]
The wife is only entitled to the spouse reversion of the CRAM pension if she does not meet or exceed the income threshold, which was EUR 17,552 per annum (EUR 4,388 per quarter) as at 01.01.08 per CRAM web site
I have determined the initial contributions of the parties to be as follows:
[415]
The real property called the Island property. This property was of course on the evidence of both parties, sold in 1990 realising approximately $183,790. The proceeds were paid to the T Trust;
An interest in the T Trust (see paragraphs 15(a) and (b) of the husband's affidavit).;
An interest (now 16.875%) in the E property and the C property (this property was sold in 1988 the husband receiving none of the proceeds), subject to a userfracht (see paragraph 15(c) of the husband's affidavit). The userfracht provided for the husband's mother to have occupancy for life;
A Porsche coupe (see paragraph 15(d) of the husband's affidavit);
A 50% interest in the L property owned jointly with the husband's former wife, R Lockie (see paragraph 15(e) of the husband's affidavit);
Savings of approximately AUD$70,000 held in various bank accounts (see paragraph 15(f) of the husband's affidavit);
A share portfolio worth approximately AUD$176,000 (with a liability of approximately AUD$116,000 attached to same) (see paragraph 15(g) of the husband's affidavit) and a debt (not able to be quantified) to BNP Singapore branch against which there was a share portfolio again not capable of quantification;
An interest in an investment scheme called "P 1" and "P 2" (see paragraph 15(h) of the husband's affidavit);
Various personal items (see paragraph 15(i) of the husband's affidavit);
Accumulated interests in pension funds;
At about the date of cohabitation commencing the husband had a Visa card debt of $2,674.
[416]
At the time of commencement of cohabitation the husband was employed full-time with a French based international company and was on a salary package of approximately AUD$170,000 per annum. I have made findings that significant portions of that income were expended in the support of or associated with expenditure by the husband on his former wife and the child of that relationship.
At the date of cohabitation I find the wife had the following property and resources:
A 10/58 share of the E Road property;
Cash on deposit of $81,569.82;
Shares in public listed companies worth about $40,565;
Jewellery, furnishings and household effects;
Superannuation of $13,613.00;
Holden Gemini motor vehicle;
Toyota Seca motor vehicle;
Visa (in credit) of $298.87.
The wife was employed full-time by a Bank in Sydney on a salary package of $46,930 per annum (see paragraphs 42 and 45 of the wife's affidavit).
[417]
The contributions of the parties from the date of cohabitation to the date of separation
[418]
The husband's submissions in relation to those contributions are as follows:
[419]
The husband contends that he made the following contributions during the course of the marriage:
[420]
(a) The husband sold the [Island] property in 1990 and applied the net proceeds of approximately Aus$183,790 (and investment returns thereon) to various bank accounts in his and the wife's name, investments, in discharge of the mortgage on the [N Street] property, and to acquire the [U] Street property (see paragraphs 15(a), 39, 57, 69, 132 and 137 of the Husband's affidavit);
[421]
(b) The husband contributed equally to the deposit used to acquire the [N Street] property in 1987. The Wife was the sole registered proprietor but concedes that she held 50% of her interest in this property in trust for the husband. The husband contends that he paid the majority of the mortgage repayments on the property until it was rented, as well as paid for most of the bills and living expenses (see paragraph 22 of the Husband's affidavit);
[422]
(c) The wife ceased to be employed from November 1989 until after separation. During this time the husband asserts he was the sole "breadwinner" (see paragraph 24 of the Husband's affidavit). The wife contends that she earned an income from the rent on the [N Street] property and from her investments. However, in cross-examination the wife accepted that half the rental of the [N Street] property ought to be credited to the Husband, and that her investment income was not substantial;
[423]
(d) The husband earned a better-than-average income throughout the marriage (see Exhibit H-2: Husband's Schedule of Income), and after retirement continued to receive payments from his French pensions, which was applied predominantly for the welfare and benefit of the wife and [the child] - even during the period that the parties lived apart (although [R] and [H] [the husband's daughter from his marriage to R] also derived some benefit from the husband's employment in the early years of his marriage to the wife);
[424]
(e) The husband provided the wife with a lavish lifestyle, and because of his position with [Z Company / Z International] the wife was able to attend functions and travel with the husband to various locations around the world on both business and pleasure. The wife was also able to commute free, or at a significantly reduced price, to Sydney approximately every six (6) weeks to visit her father while the parties lived in France due to the husband's employment with [Z Company] (see paragraph 24 of the Husband's affidavit);
[425]
(f) The husband paid for the cost of furnishings at the [N Street] property and later their apartment in [France] (see paragraphs 23 and 26 of the Husband's affidavit);
[426]
(g) The husband's homemaker and parenting contributions have already been addressed;
[427]
(h) The husband contends that the majority of funds in joint accounts and accounts held by the wife for herself (and those allegedly held in trust for [the child]) came from the husband (see for example paragraphs 72, 77 and 99 of the Husband's affidavit). See also submissions regarding the wife's credit at paragraph 19 under the heading "Credit" above;
[428]
(i) In about August 1997, the husband received a non-taxable lump-sum payment of approximately Aus$180,995 by way of early retirement package, which was paid into the parties' Credit Lyonnais account (see paragraph 79 of the Husband's affidavit);
[429]
(j) The husband made a number of improvements to the [E] Road property and assisted in the care of the wife's father while he lived at [E] Road with the wife (see paragraphs 89, 91 and 109 of the Husband's affidavit);
[430]
(k) In or about 1998, the parties purchased the [H] Street property. Although this property was purchased in the name of the wife, the Husband contributed the sum of approximately Aus$269,950 from funds held by him in various accounts. The balance of the funds for the purchase came from the sale of the [N Street] property. The parties borrowed the shortfall to complete the purchase. Repayments on the mortgage were met from the wife's Westpac account, into which the husband made regular deposits (see paragraphs 94 and 95 of the Husband's affidavit);
[431]
(l) The husband assisted the wife with her litigation to recover compensation as a result of her motor vehicle accident and provided moral support during this time by attending with her to consult various doctors and specialists (see paragraph 84 of the Husband's affidavit).
[432]
In respect of the wife's alleged contributions during the marriage the husband contends that:
[433]
(a) After ceasing her employment in 1989, the wife had no significant income (apart from a small return on her investments). Although accounted for in the wife's Income Tax Returns, the rental income received from the [N Street] property was income derived by both parties and not solely by the wife (see submissions above);
[434]
(b) Any benefit derived from the discounted interest rate paid on the mortgage secured over the [N Street] property as a result of the wife's employment with [a Bank] was short-lived because the wife ceased her employment shortly thereafter and the rate reverted to a market rate;
[435]
(c) Funds held by the wife in various accounts for herself (and allegedly on trust for [the child]) as at the date of separation were predominantly derived from the husband's exertions or assets brought into the marriage by him (see submissions above);
[436]
(d) The wife did not perform the vast majority of household, domestic and parenting duties (see submissions above);
[437]
(e) The wife claims to have made contributions to the marriage by her attendance at various [Z Company / Z International] functions with the husband and travelling with him around the world. However, in cross-examination the wife was not able to point to any direct benefit obtained by the husband in his employment from her attendance at these functions. The husband contends, rather, that the wife benefited from this lifestyle and that this is in fact a contribution by him to the marriage and not a contribution by the wife;
[438]
(f) The wife did receive compensation of approximately $147,558 from her motor vehicle accident in late 1995, but on her own evidence $90,000 of this was applied toward the purchase of her brother's share in the [E] Street property (see paragraph 147 of the Wife's affidavit);
[439]
(g) The wife tells us at paragraph 147.2 of her affidavit that (apart from $121.51) the balance of the funds were used to buy shares in her name and for [the child] after separation, but fails to provide any specific details;
[440]
(h) The husband assisted the wife with her litigation to recover compensation as a result of her motor vehicle accident and provided moral support during this time by attending with her to consult various doctors and specialists (see paragraph 84 of the Husband's affidavit).
[441]
Ultimately there was little in dispute about the parties' contributions from the date of cohabitation until the date of the separation. I find the husband made the following contributions:
[442]
Initial contributions as previously determined by me;
2. Income earned during the marriage as determined earlier by me, together with the lifestyle benefits which flowed from that employment;
[443]
Homemaker and parent contribution as determined by me;
[444]
His retirement package which provided about AUD$181,000;
2. Some of the financial management for the family (the minority);
3. Non-financial contributions by way of improvement to the property owned by the parties;
4. All other contributions referred to by the husband in his submissions are taken into account by the inclusion of the initial contributions of the husband or from his income and termination payment.
The wife's submissions in relation to those contributions are as follows:
[445]
The wife has provided a list of contributions to be relied upon as Exhibit W2. This document refers to the evidence relied upon to support the submissions made as to the wife's contributions. With respect to the initial contributions of each party this matter has been addressed earlier in these submissions in relation to "Findings of Fact to be Determined by the Trial Judge".
[446]
In relation to contributions which may be relied upon by the husband submissions have been made above with respect to the husband's initial contributions by way of the property brought into the relationship at October 1986 and the husband's liabilities at that time. Although the husband subsequently contributed income from his employment with [Z Company / Z International] as has been submitted above, substantial amounts of his income and salary package did not come into the relationship with the wife in these proceedings but were paid to or for the benefit of his former wife and daughter from his previous marriage including most elements of his non-salary remuneration while in Australia. Further, the husband's contributions by way of income are reduced by the amounts he paid for the purchase of the Toyota motor vehicle for his former wife in 1988. The contract for purchase is Exhibit 35 to the wife's affidavit which shows that the purchase price of the vehicle was $9,600 but that the husband was to make instalment payments of $236.09 per month. The husband conceded in cross examination that he made those payments up to October 1989 when he paid out the liability under the agreement in the amount of $8,304. The husband also had to apply income during the relationship to meet legal costs of proceedings against his former wife both in [the Island] and in Australia. Some of the documents evidencing those proceedings are part of Exhibit 36 to the wife's affidavit.
[447]
To the extent the husband asserts homemaking and parenting contributions during the cohabitation of the parties submissions have been made above in relation to findings of fact to be determined by the trial judge as to why the wife's evidence in this regard should be preferred to that of the husband.
[448]
The husband may rely upon the payment he received upon termination of his employment with [Z Company / Z International] referred to at H para 79 in 1997. However, regard must be had to the fact that some of this retirement payment has accrued from employment which is contemporaneous with the cohabitation of the parties from 1986. Accordingly it is submitted that the wife has indirectly contributed to that extent to the payment the husband received upon termination of his employment. The wife has also indirectly contributed to the husband's accrued entitlements to a pension income which he commenced to receive following his termination of employment since his pension entitlements also accrued in part during the cohabitation of the parties from 1986.
[449]
It is submitted that the assessment of contribution by each party should be as set out in the wife's list of contributions which is Exhibit W2, namely wife 48% and husband 52% to the date of separation and wife 58% husband 42% to the date of hearing. In considering the appropriate assessment of contributions it is submitted that considerable weight should be attached to the very late contribution made by the wife less than 12 months before separation in the form of the compensation payment she received of $147,558.81 and the significant inheritance received by the wife in 2002 as detailed at W1, para 195.
[450]
In relation to the list of contributions relied upon by the wife in exhibit W2 I now repeat that list here. These submissions are not confined in time to the date of separation. Rather they address all contributions to the date of trial.
At cohabitation the wife owned a 10/58 share of [E Road], she had cash of $81,569.82, shares in public companies, jewellery and household contents, superannuation of $13,613.00, a Holden Gemini motor vehicle, a Toyota Seca motor vehicle and a Bankcard balance of nil as at 26 September 1986 (incorrectly shown as a Visa credit account of $298.87) (Affidavit of wife sworn 17 December 2007 paragraph 19; Exhibit 1).
Wife worked in paid employment between the commencement of cohabitation and November 1989 and between February 2001 and March 2004 (wife's affidavit paragraph 42-54).
Wife's parents provided rent free accommodation for the parties from July to September 1985 and from 14 November 1986 to 18 February 1987 (wife's affidavit paragraph 73 and 78), when the husband made trips to Australia between 1989 and 1994 (wife's affidavit paragraphs 87 and 120); for 15 weeks between July 1994 and May 1996 (wife's affidavit paragraph 138); from December 1996 until December 1998 (wife's affidavit paragraphs 151 and 153), from July 2000 until April 2001 (wife's affidavit paragraphs 163-166); and for the wife and [the child] from May 1994 until December 1998 (wife's affidavit paragraph 135).
The wife paid motor vehicle expenses for the vehicle which the parties jointly used from the commencement of cohabitation until November 1988. She also paid the mortgage payments and outgoings in relation to the [N Street] property (wife's affidavit paragraph 82).
The wife paid monies towards the purchase of the property at [N Street] being the sum of $54,919.93 together with loan funds of $70,000.00 (wife's affidavit paragraph 90). In April 1987 the husband paid $28,000 being his 50% share of the money the wife had contributed to the purchase (wife's affidavit paragraph 92).
Wife contributed to the acquisition of the [N Street] property by being able to obtain a loan at less than the market rate of interest to assist with the purchase of the property (wife's affidavit paragraph 93).
The wife paid the mortgage payments in relation to the [N Street] property (wife's affidavit paragraph 95).
[451]
Her initial contributions as determined by me;
2. Her income as determined by me;
[452]
Her homemaker and parent contribution as determined by me;
[453]
Her compensation payment received in 1999 of $147,558;
2. The benefit which the wife received from her employer of a discounted loan rate which was used to buy the N Street property;
3. Management of the parties' finances during the cohabitation. I find that the wife was the person who did the majority of the financial management for the family during the cohabitation;
4. Rent free accommodation provided by the wife's parents from November 1986 to February 1987; between 1989 and 1994 when the parties visited Australia; between 1994 and 1996 when the parties were separated; between December 1996 to December 1998; and between July 2000 to March 2001;
5. Her support for the husband when he travelled in the manner determined by me. Also support for the husband when entertaining his business associates;
6. The wife's father provided assistance to the wife and the child between 1994 and 1996 as detailed by the wife in her evidence. He also assisted in similar ways until 1997;
7. Inheritance of $25,513 in 1991;
8. Use of the E Road property between January 1997 and August that year;
[454]
Bathing and other personal assistance to the husband when he was debilitated with his back injury.
In addition to the above set out submissions of the husband he made further submissions (in accord with the directions made by me) as follows:
Following separation the husband contends that he has made the following contributions:
[455]
(a) After separation, the husband resided at the [E Road] property for a period of time. During this period, the husband paid for all utilities and household bills for that property, including the cost of a gardener (see paragraph 124 of the Husband's affidavit);
[456]
(b) Since separation, the husband has been providing financial support to the wife to assist with [the child's] expenses, initially in the sum of $1,400 per month but later $900 per month. In addition, the husband has been paying for some of [the child's] expenses such as clothes, shoes, child psychologists, etc. (see paragraph 124 of the Husband's affidavit);
[457]
(c) The husband has continued to receive an income from his French-Pensions;
[458]
(d) In December 2002, the husband purchased the [U] Street property using funds from the sale of the [Island] property. The husband has paid all outgoings in respect of the [U] Street property (see paragraphs 131 and 137 of the Husband's affidavit);
[459]
(e) The husband cares for [the child] when she spends time with him, and despite the difficulties involved with contact in the past, the husband has remained involved in all aspects of her care and medical treatment since separation.
[460]
By comparison, the wife has made the following contributions since separation:
[461]
(a) The wife receives rental income of $325 per week from the [E] Road property (see paragraph 196 of the Wife's affidavit);
[462]
(b) The wife received an inheritance from her late father in 2002 which included a legacy of $43,365 and a 24/58 share of the [E] Road property (see paragraph 195 of the Wife's affidavit);
[463]
(c) The wife purchased her brother's share in the [E] Road property in 2003. The wife alleges that she applied $90,000 from her compensation funds toward acquiring this interest, and borrowed a further $180,000 secured on the [H] Street property. In addition to the other matters raised above, the husband contends that the wife's contribution with respect to acquiring her brother's share is diminished by the fact that a matrimonial asset, namely, the [H] Street property, was encumbered in order to acquire the said interest (see paragraph 197 of the Wife's affidavit);
[464]
(d) The wife appears to have acquired shares and investments in her name (a substantial number of these assets allegedly held on trust for [the child]). The husband contends that the wife has not adequately explained (except in the vaguest of terms) the source of funds for these assets. Accordingly, the Court is invited to find that these assets have been derived from funds arising out matrimonial assets (the majority of which are funds generated by the husband's employment and or assets at the commencement of the relationship).
[465]
The husband respectfully submits, in respect of contributions generally, that as a consequence of the Court's findings on credit as contended for by the husband, wherever there is a dispute on the facts (except where concessions have been made by the parties), the Court ought to accept the husband's evidence over that of the Wife.
[466]
The husband contends that at the date of separation, the parties' contributions should be assessed as follows:
[467]
At the date of trial, principally as a consequence of the inheritance received by the wife comprising her father's half interest in the [E] Road property, contributions should be seen to be:
[468]
The husband's post separation contributions (over a period of 8 years) were as follows:
[469]
Financial support for the child and the wife ($1,400 per month and then $900 per month over a period of 8 years);
2. Care of the child during the time she has spent with him;
[470]
Management of the assets in his control post-separation;
[471]
Contribution to the costs of the E Road property whilst the husband resided there post-separation;
2. Purchase of the U Street property. Funds from the T account and borrowings were used to purchase the property. The husband has serviced the debt on the property.
The wife's post separation contributions (over a period of 8 years) were as follows:
[472]
Care and support of the child;
2. Management of the assets which remained in her control at separation, including the assets which were said to be held in trust for the child.
[473]
Inheritance from her father of an interest in the E Road property. She also received $43,365 together with house contents and shares valued at $2,886.
[474]
The purchase of her brother's interest in the E Road property. She used savings and borrowings to acquire that interest. She has since rented the property.
[475]
In weighing the contributions I bear in mind the availability of the husband's income to the parties during the cohabitation was substantially reduced by the fact that parts of his salary package were applied for the benefit of his former wife and daughter and not all of his income was contributed to the marriage between the parties to these proceedings. Significant sums were required to be paid for property settlement and support of the husband's former wife and daughter.
Having regard to the submissions of the parties, the findings of fact made by me, and the agreed facts which are set out earlier in these reasons I determine that the contributions of the parties to the date of the separation favour the husband largely because of the considerably greater initial contributions. As at the date of separation the assessment I make is 56% to the husband and 44% to the wife. Following the separation the contributions of the wife have been significantly greater than those of the husband. The wife inherited a 41% interest in the E Road property which has a value on the balance sheet of $775,000. She has had the majority of the responsibility to supervise and care for the child, from separation in October 2000 until November 2008 (the commencement of the trial), who has had considerable health problems. As at the date of trial I consider the parties' contributions to be 56% to the wife and 44% to the husband.
In assessing the contributions and weighting them I have had regard to the findings I have made in relation to specific matters of contribution. I have disregarded as a contribution any item of claimed expenditure by either party where that expenditure has clearly been derived from income earned during the cohabitation and already considered and weighed as a contribution under the heading "the incomes of the parties" or from capital which has already been identified as a contribution.
The husband relies upon a contribution made to the care of the wife's father. That contribution does not appear to fit into any of the defined area for consideration as set out in s 79(4)(a) to (c) inclusive. It is however a matter which needs to be considered and I propose to do so under s 75(2).
[476]
In the balance sheet the parties created a heading "SUPERANNUATION" and another heading "FINANCIAL RESOURCES". Under the superannuation heading the wife's superannuation is collected and has a value of $49,394.
At the date of commencement of cohabitation the wife's superannuation had a value of $13,613.
Neither party addressed the assessment of contribution to the wife's superannuation. They appear to have approached the case on the basis that the parties' superannuation (in this case the wife's) should be included into the one pool with the parties' assets and have the assessment of contribution in relation to the assets of the marriage include an assessment of the contributions to the wife's superannuation.
The husband's contribution to the wife's superannuation can only be indirect.
I propose to assess the contributions to the wife's superannuation notwithstanding the fact that neither party seeks a splitting order. I will take into account under s 75(2) any assessed entitlement of the husband.
There is no evidence of any direct contribution by the husband. The wife had a substantial interest in her super fund at the date of cohabitation.
The indirect contributions of the husband see an assessment of 70% to the wife and 30% to the husband.
Each of the parties provided extensive written submissions in relation to the adjustment proposed by that party under section 75(2). I do not at this time propose to include those submissions here; however, I have considered each submission in the determination and conclusion which is set out hereafter.
[479]
(a) The age and state of health of each of the parties
[480]
The husband is 68 years of age. The wife is 55 years of age. As seen earlier in these reasons I made the following determination in relation to the parties' health and capacity to earn income:
[481]
I accept that the wife does not have any reasonable capacity to work for remuneration in the future. I conclude that unless there was a radical change in her health, which is not predicted by the medical evidence, it is most unlikely she will be in a position to earn any meaningful remuneration.
[482]
The husband has not worked for many years and there is no serious suggestion that he should return to some form of employment. He receives a pension from France which I understand is his main source of income.
[483]
The husband suffered from a serious back condition during the cohabitation.
Neither party has provided evidence as to the cost of future medical treatment and necessary services required as a result of a medical condition. The wife's attempt to provide information as to cost was contained in her affidavit sworn 29 October 2008 however, the particular paragraphs dealing with same were not read after objection was raised.
[484]
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
[485]
The husband is retired and derives his income from his French pension. The wife managed some part time work after separation however, that has ceased and I have found she has no reasonable capacity to work.
Each party has had the benefit of investments post separation which they could use to assist in their support.
In relation to the French pension the husband made the following submission:
[486]
For the purposes of the trial, an actuary was employed to calculate a present day value for the husband's pension entitlements. Counsel for the wife, however, conceded that these entitlements did not constitute superannuation or a superannuation entitlement to which the relevant provisions of the Family Law Act in relation to those matters applied. The pension entitlements do, however, provide a certain income for the husband for his life. Significantly, however, on his death they provide an ongoing (but at a lesser value) income-stream for the wife. The Australian Life Tables provided in the CCH publication, Australian Family Law and Practice, indicate that the husband's potential lifespan is approximately 15 years whereas the wife's approximate lifespan is 29+ years. On that basis, she will receive the benefit of the husband's pension entitlements, much of which were attributable to the period prior to his relationship with her for about the same number of years as he will benefit from them. Obviously in the first instance and to a greater extent than will be received by the wife, those entitlements benefit the husband.
[487]
Without having regard to the Australian Life Tables I am able to reasonably conclude, I believe, that it is probable the wife will outlive the husband. As such I am able to determine that the provision for the wife to receive part of the husband's French pension upon his demise is of value to her. It may be many years before she receives the benefit if she does at all and thus this provision can only be given a small weighting.
I set out here the evidence in relation to the value of the husband's pension. Mr Y prepared a single expert report (dated 21 November 2007). It is annexed to his affidavit sworn 21 November 2007 and filed 6 December 2007. The single expert report dealt with the husband's interest in the French pension funds which he holds and valued those pension funds as at 10 October 1986 (the date of cohabitation asserted by the wife), 1 February 1987 (the date of cohabitation asserted by the husband),and 3 October 2000 (the date of separation) and 1 November 2007 (the then current date). The report was prepared on the basis that the husband is in receipt of three lifetime pensions from Paraunion: ARRCO & AGIRC (supplementary pension); CRAM (social security) and CRAMIF (worker's compensation). The table outlining the values at the stages on the timeline and answers to important questions (posed in a letter from Pearson Family Lawyers to Mr Y dated 15 December 2006 and attached to the report of Mr Y) regarding the pension fund are set out in a table on page 6-8 of the report and the limitation/disclosure regarding the report is set out at page 9. The current value attributed to the pensions is set out in the balance sheet.
I take into account here that the wife must be seen as having made an indirect contribution to this resource of the husband's.
The husband's Financial Statement sworn 20 October 2008 shows he was receiving a weekly pension of $2,053 from the French pension funds.
[488]
(c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
[489]
As set out earlier, the parties will share in the care of the child who is now just 15. The wife will have the major portion of the child's time. Both parties will contribute to the financial support of the child. There is no Child Support Assessment however, the husband has voluntarily paid substantial child support ($900 per month) since the separation. In paragraph 124 of his affidavit the husband said he paid other expenses for the child including clothes, shoes and a child psychologist. No particulars were provided and so I am unable to give that allegation any weight. The husband has not paid for the child schooling since separation. She attends a private school. The husband said he would consider contributing to the cost of school and other activities in the future.
The child has expenses associated with extracurricular activities such as dancing. She also has medical expenses which have been met by the wife.
The husband will contribute to the future care of the child as provided for in the consent orders relating to parenting.
I accept that the wife will also make a significant financial contribution towards the support of the child in the future. I conclude the contribution will probably be greater than that made by the husband.
[490]
(d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain;
[491]
The financial circumstances of the parties have generally been considered in this hearing. There has not, however, been any specific evidence given as to the parties' day to day living expenses. To the extent that there is evidence about that I have taken it into consideration.
The husband is in a de facto marriage relationship with Ms A. Her financial circumstances to a limited degree were canvassed in the hearing and I have made findings in relation to some aspects of that relationship. I incorporate those findings at this point.
The husband gave evidence that he is bound to pay funds to his former wife R Lockie. He has no legal liability to pay her any further funds. He says he regards himself as morally bound to do so. He has, in the past, failed to pay moneys to her as provided for in court orders. I do not believe I could be satisfied that the husband will ever make that payment to her although, I acknowledge, his good intentions.
[492]
(e) The responsibilities of either party to support any other person
[493]
The husband has a complimenting obligation to contribute to the support of Ms A and she likewise towards the husband. They now provide support for each other by the provision of accommodation both in Australia and in France. They have an arrangement which sees them both striving to contribute equally to day to day living expenses.
[494]
(f) Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party
[495]
I have referred earlier to the husband's eligibility for income from France.
[496]
(g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
[497]
The parties lived a reasonably high standard of living in some measures. Through the husband's employment the parties were able to travel extensively around the world. The husband still has that capacity to some extent (he now receives discounted travel privileges). He has been living about half of his year in France and the other in Australia. That may change in the future now the husband has the benefit of orders to share time with the child.
The husband lives with Ms A in coastal New South Wales and also shares the U Street property with her when he is living in Sydney.
The wife has occupation of the H Street property and has the income from the E Road property.
[498]
(h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
[499]
This is not a matter for consideration in this case as neither party seeks an order for spouse maintenance.
[500]
(j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
[501]
The parties' contributions have been considered by me earlier in these reasons.
[502]
(k) The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
[503]
The cohabitation lasted from October 1986 until October 2000. There was a period of separation from 1994 until 1996. Thus, the parties cohabited for 12 years. The question of the parties' earning capacity is referred to earlier.
Suffice to say I do not find that either parties' earning capacity has been impacted upon by the marriage itself. The wife's earning capacity has been impacted upon by her disabilities/medical condition.
[504]
(l) The need to protect a party who wishes to continue that party's role as a parent
[505]
The wife has not run a case which has this element at its core. The wife will be available to care for the child due to the wife's incapacity for work.
[506]
(m) If either party is cohabiting with another person - the financial circumstances relating to the cohabitation
[507]
The circumstance of the husband's cohabitation with Ms A has been considered in this judgment earlier.
[508]
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties
[509]
Based upon my determination of the division of assets after assessment of contribution, the wife will receive $1,722,246 worth of net property together with her superannuation ($49,394) and the husband will receive $1,353,194 worth of net property. The wife retains all of her superannuation although I have determined that the husband has made an assessed contribution towards that superannuation. The husband will retain his French pension although the wife must be seen as making an indirect contribution towards that as it was partly accumulated during the cohabitation. As a result of the division determined by me based on assessment of contribution the wife will receive $369,052 more in net assets that the husband.
[510]
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
[511]
There is no Child Support Assessment although the husband pays child support.
[512]
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
[513]
Since the completion of the trial the parties' post-separation contributions have continued. So far as the wife is concerned the contributions of greatest moment which need to be considered are her ongoing care for the child and her financial support of the child. In relation to the husband the contribution of greatest moment on his behalf, post trial, is his payment of child support for the child and his contribution towards her care. Since the commencement of the trial before me the contribution of the husband in the care of the child will have increased pursuant to the Orders made by me at that time.
Post-separation the wife has had occupation of the former matrimonial home. This has been a period in excess of 8 years. She has also had the use of the monies referred to as "[the child's] trust money" although I accept she has not availed herself of those funds. Since the separation the husband has used the funds in the T trust to purchase his property at U Street. He has since had the use of that property. The wife has the benefit of the E Road property which has been rented by her. She meets the outgoings on the property.
The husband relied upon a contribution made to the care of the wife's father. That contribution does not appear to fit into any of the defined areas for consideration as set out in s 79(4) (a) to (c) inclusive. It is, however, a matter which needs to be considered and I take it into account here as it was a contribution which the parties collectively saw as appropriate. If the husband had not assumed the role he did in relation to the care of the wife's father then I am satisfied she would have done so or the parties would have hired others to attend to those matters.
Prior to delivering this judgment I advised the parties in advance of my intention to hand down judgment. Given that a considerable number of months had passed since the trial concluded I wished to give each an opportunity to consider making an application to re-open. No such application was made.
I need to consider that included in the balance sheet the parties' paid legal costs are included. The wife has a figure of $165,485. The husband has a figure of $91,114. So far as the husband is concerned there is noted as a liability his debt for legal fees in the sum of $27,700. The significance is that when the balance sheet assets are divided the wife will have $165,485 on her portion of the assets which is a notional sum only. The same is true for the husband, although for a smaller sum. I also need to consider that each party will have to pay further legal costs as referred to in the exhibits W6 and H8.
[514]
(p) The terms of any financial agreement that is binding on the parties
[515]
Having regard to s.75(2) factors, there are in reality only two of those that favour the wife. Those are the fact that she will have the care of the parties' daughter, [the child], for some years to come and secondly that the husband has the benefit of a certain income for his life. As to that latter matter, it has already been submitted that that benefit will in the ultimate almost certainly flow to the wife at a lesser level. Overall, it is submitted that the s.75(2) factors do however favour the wife. However, having regard particularly to the husband's age and other matters to no great extent so that overall it is submitted the division between the parties should be an equal division or possibly a division favouring the wife in the amount of 52.5%, while the husband would retain 47.5%.
[516]
The wife submits that she should have an adjustment of 12% assuming she receives 58% of the parties' net assets following the assessment of contribution. I assume that she would seek a greater adjustment if the assessment of contribution sees her with less than 58% of the parties' assets. Overall the wife says she should receive 70% of the parties' assets.
It should be remembered that the submissions of the wife are based upon the Court excluding the "[child's] trust money" as an asset of the parties.
I agree with the submission of the husband which promotes an adjustment in favour of the wife. I agree that the most significant matters which warrant that adjustment are the wife's greater care for the parties' child who is now 15 years of age. I also agree that the difference between the parties in terms of their future incomes where neither will be working is a very important matter. The pensions currently provide the husband with a weekly income in excess of $2,000. Part of that income he contributes to the support of the child. The husband does pay tax, although he assessed that at $138 per week. He also contributes towards the support of H at the rate of $58 per week and the support of his mother in the sum of $25 per week.
The wife's income is derived from investments and child support. Otherwise she is dependant upon government benefits, as she states in her Financial Statement.
An adjustment of 2.5% to the wife would see a differential in net assets between the parties of $522,824. An adjustment to the wife of 10% would see a differential of more than $980,000. Weighing all the considerations I determine that an adjustment which sees the wife receive 59% of the parties' assets would be a proper adjustment in the circumstances of this case. That adjustment would see the wife receive $553,580 more in net assets than the husband. The wife would also retain her superannuation.
[517]
Having regard to the facts in this case I see the adjustment of net property 59% to the wife and 41% to the husband where the differential between the parties is $553,580 and where the wife retains the whole of her superannuation is just and equitable.
[518]
The parties each provided summaries as to how the assets should be divided between the parties.
On the balance sheet the wife has the following assets and liabilities:
[519]
(This amount is the combination of the husband's net assets together with $19 of joint assets.)
[520]
AMOUNT OF NET ASSETS THE HUSBAND TO RECEIVE AS HIS 41% SHARE: $1,260,930
[521]
AMOUNT TO BE PAID TO HUSBAND BY WIFE IN NET ASSETS: $ 717,096
[522]
The wife is required to pay the husband $717,096. Part of the payment can be met immediately by requiring the parties to transfer to the husband all of the funds standing to the credit of the Luxembourg account ($236,489 on the balance sheet). The wife will then be given two months in which to make the balance of the payment ($480,607) before orders will operate to require her to sell one of the pieces of real estate owned by her in northern Sydney.
The wife, in her application, sought an order that the husband be returned all items of furniture in her possession which had been acquired by the husband prior to the cohabitation. Such an order should be made.
On the balance sheet the contents of the H Street property are marked as "joint assets". For the purpose of calculating the parties' respective shares I have treated those contents as the wife's property. An order should be made which sees her retain those assets, subject to the agreed return to the husband of any furniture he had at the date of cohabitation which is still retained in the H Street property. Similarly, I have treated the $19 in the Credit Lyonnais Compte account 52... as the husband's property.
On 16 July 2009 I had my Associate send the following email to the legal representatives of the parties.
[523]
I refer to the above matter, and send the following on behalf of his Honour:
[524]
1. The account or accounts which are set out in item 40 of the balance sheet are attributed to the wife as the owner. Can I please have the precise details of the name of each bank account, account number and any other identifying character, which makes up item 40.
[525]
2. If trusts do exist in relation to the assets held in the name of [the child] both in Australia and Luxembourg what part, if any, should section 85A play in the circumstances of this case?
[526]
3. Please provide an agreed figure to cover real estate agents commission and legal/conveyancing fees associated with each piece of property ([H] Street and [E] Road, [northern Sydney])
[527]
In relation to Questions 1 and 2, his Honour would like this to be addressed in the form of short written submissions to be emailed to me at your earliest convenience, or alternatively, be addressed orally when the matter is listed for delivery of judgement.
[528]
In relation to Question 3, his Honour requires this to be addressed in written form to be emailed to me by noon tomorrow Friday 17 July 2009.
[529]
The parties replied to the email on 17 July 2009 as follows:
[530]
On behalf of both parties, I provide the following answers to the questions raised in your email received yesterday. We apologise for the delay in responding.
[531]
1. The account or accounts which are set out in item 40 of the balance sheet are attributed to the wife as the owner. Can I please have the precise details of the name of each bank account, account number and any other identifying character, which makes up item 40.
[532]
The accounts in [the child's] name comprised in Line 40 of the Balance Sheet are:
[533]
Commonwealth Bank, [northern Syney] BSB [...] account [...]
2. If trusts do exist in relation to the assets held in the name of [the child] both in Australia and Luxembourg what part, if any, should section 85A play in the circumstances of this case?
[536]
The wife submits Section 85A should play no part in relation to the assets held in the name of [the child] for the reasons advanced in paragraphs D20 to 27 of the Respondent Wife's Submissions prepared by Mr Millar of counsel and dated 28 November 2008. They are [the child's] assets and should be retained by her for her benefit.
[537]
The husband submits the assets held in the name of [the child] are in fact assets of the parties, and may be applied in part satisfaction of his entitlement to property settlement for the reasons advanced in paragraphs C21(a), 29-35 and 119 of the Applicant Husband's Submissions prepared by Mr Lethbridge SC and Mr Gramelis of counsel and dated 7 December 2008.
[538]
3. Please provide an agreed figure to cover real estate agents commission and legal/conveyancing fees associated with each piece of property ([H] Street and [E] Road, [northern Sydney])
[539]
With respect to agents' commission currently the rate is between 2-2.3% of the sale price, and the Law Society of NSW provides the following conveyancing fees:
[540]
Should the wife fail to pay the husband the amount due to him under the orders (namely $480,607) then one of the northern Sydney properties she owns will need to be sold to provide those funds to him. I would imagine that the wife's first preference would be to sell the E Road property. That property is currently rented out by the wife whereas she resides with the child in the H Street property. The E Road property has a value of $775,000 on the balance sheet. There is a mortgage of $179,960. The (mid point) expense of sale provided by the parties (as set out above) for the E Road property is $19,388. The net proceeds from a sale at $775,000 should be $575,652. The husband's entitlement at $480,607 represents 83.5%.
An order will be made providing for a sale of the E Road property and after payment out of the sale expenses and the discharge of the mortgage the husband is to receive 83.5% of the proceeds and the wife the balance.
In an email reply to an invitation to the wife to make further submissions in relation to section 85A the wife's solicitor advised that it was the wife's preference for the E Road property to be sold (in preference to the H Street property) if it was necessary to satisfy orders of the Court.
[541]
I certify that the preceding four hundred and thirty two (432) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
The parties were ordered to transfer the Luxembourg account to the husband, and the wife was ordered to pay him $480,607 within two months. If she failed to pay, the E Road property was to be sold; after expenses and the mortgage, the orders direct 83.5% of the balance and then the remaining balance to the husband. The wife was also ordered to return the husband’s pre-cohabitation furniture and personal items. The reasons state the wife would receive the balance, creating an inconsistency with the written sale order.
Notwithstanding the very precise directions having been made, the wife chose to issue a subpoena to Ms A, the husband's partner, on 30 October 2008 and returnable on the first day of the trial. The intention of my making directions for the issue of subpoena on 18 August 2008 was to ensure that all subpoena issues were determined before the trial commenced. That did not happen and during the course of the hearing I was required to determine the question of the requirement for Ms A to answer the subpoena which had been issued against her but not served upon her. The issue of Ms A being a resource in the husband's financial circumstances had been known by the wife for many months before she issued the subpoena. As it was, Ms A was a witness in the case and was available for cross-examination.
The parties asked me to make the following orders by consent prior to the trial:
That the parties contribute equally to the costs of the Independent Children's Lawyer herein such costs being $1,650 per party and to be paid within 28 days of the date of these Orders.
That the appointments of the Independent Children's Lawyer continue for a period of 12 months from the date of the making of these Orders.
The husband asserted that at the commencement of his cohabitation with the wife he had one bank account in the Island. He had several bank accounts in France and he had one bank account in the Banque Nationale de Paris in Sydney.
The husband was asked questions about paragraph 15(f) of his affidavit. He was asked how he arrived at the estimate of $70,000 as his "total savings" at the date of commencement of cohabitation. He said it was a "guesstimate".
He was asked whether he held a United Overseas Bank (UOB) account. He said he did have such an account at one stage but he could not remember whether the account was operative in 1986 or 1987. He agreed that at one stage he had a bank account with the Banque Nationale de Paris in Singapore. He could not remember any particular details about balances in that account at any particular time.
The husband worked for Z Company at the time of commencement of cohabitation. He received a salary package which he conceded included the rent paid on an apartment, electricity and telephone payments in respect of the apartment, and the provision of a motor vehicle. He agreed that the motor vehicle could be used by his family (consisting of his former wife and himself); however, whenever he required the use of the vehicle it was available to him.
It was put to the husband that at the time he commenced living with the wife she had two motor vehicles. He agreed that was the case. He denied that he had the use of one of the vehicles on any regular basis.
The husband also agreed that there was an entertainment allowance paid by Z Company and it could be used for work related functions.
He further agreed that 60 percent of his daughter H's school fees were paid by Z Company. The child was at a private school in 1986 through to 1988.
In addition, the husband agreed Z Company paid medical and dental costs for himself, his former wife and his child H.
The husband agreed that a portion of his salary was paid to a joint account in Paris, that joint account being held by himself and his former wife. That arrangement had continued since 1986. After he commenced living with the wife he agreed that he could have deposited 4,000FF a month into an account for his former wife. He further agreed that additionally, he deposited 1,200FF each month to each of the former wife's and H's bank accounts in Paris.
The husband agreed that during cohabitation with the wife he paid the rental in respect of the T Street property and he also paid the telephone and electricity accounts at the N Street property. The wife in these proceedings met the strata payments on the N Street property.
Prior to cohabitation with the respondent wife the husband had purchased the L, France, property. He owned that property with his former wife. Throughout cohabitation with the respondent wife it was necessary to pay monies for the upkeep of that property including council rates and taxes.
The husband conceded that at one time he held an account in a bank in Geneva but did not believe he held an account in a Geneva bank at the current time. In relation to the bank account he held with the Banque Nationale de Paris in Singapore he said he had not operated that account for 20 years.
The husband was asked about operating an overdraft with the Singapore branch of the Banque Nationale de Paris in the sum of $100,000. He said he did not do that. The husband was asked whether in 1987 he held an account with the Banque Nationale de Paris in Tokyo. He did not think so. He was shown a document dated 7 August 1987 which related to a transfer of money in Japanese yen to the husband's Australian bank account. In light of this letter the husband conceded that it was most likely he did have an account in Japan at that time. He did not know what the balance of the account was after that deposit and thought it might have been a closing of the account which led to the transfer.
The husband was shown a document which evidenced the establishment of an overdraft with the Banque Nationale de Paris in Singapore in the sum of $100,000. He was unable to recall ever drawing on that overdraft.
The husband conceded that in October 1986 he had a liability in respect of his Visa credit card of $2,674.
The husband did not know of any accounts he held in the Isle of Man or Switzerland. He was able to recall that he held an account in Luxembourg in joint names of himself and the respondent wife, being money held for the child. The husband denied he ever held any monies in an account in Jersey. He was shown a document dated 8 November 2000 which suggested there was an account established in Jersey through the Banque Trans-Atlantique. The husband denied that he had ever deposited any funds in or made any transactions on such an account.
The husband was taken to paragraph 13 of his affidavit. He conceded that the final separation was most likely October 2000.
The husband was taken to page 22 of his affidavit. On that page the following heading appeared: "As at the date of final separation, I owned the following property". The husband was asked what date he was referring to when he thereafter set out information about his property. He said October 2000, and having looked at sub-paragraph (e) on that page, said it was probably 1 October 2000.
The husband was taken to sub-paragraph (d) on page 22 of his affidavit. He said the account he held with Societe Generale Bank was an account in his sole name. He said the accounts he held with Credit Lyonnais in Paris was a joint account he held with the respondent wife and that he may have also held another account in his sole name. He also thought there may have been two other accounts, one being a savings account in his sole name and a savings account in the wife's sole name.
The husband was taken to page 22 of his affidavit. He was then asked to look at item 32 in the exhibits to the wife's affidavit. It was a letter dated 3 July 1987. The letter indicated an overdraft of $143,854 as at that date. The husband was asked what purpose the funds in the overdraft were applied to. He said it was most likely to buy shares on the Australian Stock Exchange. He was not sure. He was not sure whether he had purchased them in his own name or that of his former wife R.
The husband had only been asked to look at the first page of the document dated 3 July 1987. The second page of the document, no doubt, would have been of some assistance to him in his recollection. That page talked about the possibility of the bank being forced to sell "your shares currently held by us for the exact debit amount plus interest outstanding in your account with us." In those circumstances it seems probable that shares had been acquired in the husband's sole name.
The husband was further asked about page 22 of his affidavit and in particular sub-paragraph (d). He was asked whether that paragraph contained reference to all the accounts held by him as at October 2000. He said he might have had an account "in Credit Agricole in Gibraltar and I also might have had an investment in Walker Crips in London". He was unsure how much might have been in those accounts if they were operative at that time. The account at Gibraltar was in the name of T Pty Ltd. So far as the balance of the accounts which he held in the Credit Lyonnais, he said he could not remember the exact balance, however he had statements to show what that balance was and those statements were in Court with his lawyers. The husband said that in October 2000 he could have opened an account with Westpac in northern Sydney. He said that although paragraph (d) on page 22 represented the best of his recollection, it was possible that he had in October 2000 another bank account in Banque Transatlantique. He had a recollection of having opened an account with that bank in about 2000. The bank account was in association with a managed share portfolio which the bank controlled for him.
The husband was taken to his Financial Statement which he swore in 2004. In that statement his attention was drawn to the fact that he disclosed a bank account with Banque Transatlantique.
The husband agreed that after October 2000 he had an account with UBS Warberg, being a cash management account held in London. He said the account had been opened before 2000. He thought the account was either in his name or in the company name T Pty Ltd, however he was unsure of this.
The husband said that the money he had in accounts at separation in October 2000 was used, at least in part, to purchase the U Street, inner Sydney, property which he currently owns. In addition to using his own funds he borrowed money from Westpac Bank to buy that property.
Since October 2000 the husband has lent on one occasion and for a period of 10 days only, the sum of $10,000 to Ms A. Since that time she has also lent him money from time to time. He explained that he and Mrs A hold a joint account which they both contribute to equally and from which their joint expenses are paid. He pays between $800 and $1,000 per month to the account and whatever he pays, she matches. That has been the arrangement since they commenced living in a permanent relationship. The husband said the permanent relationship commenced somewhere between September 2003 and the end of that year.
The husband was taken to paragraph 145 of his affidavit. That paragraph reads as follows:
Whilst working for Z Company the husband conceded the respondent wife accompanied him to many work functions in Australia. He said that he seldom entertained clients at home. He agreed that the respondent wife accompanied him on overseas travel in the course of his work.
The husband was shown a document which ultimately became Exhibit W9. He was asked the purpose of the document and he said the document had been dictated to him by the respondent wife. He said the wife told him that he should send a letter with these explanations to "that man". He agreed that the wife was helpful to him when he worked for Z Company; however, he also said she was at times detrimental. He did not agree that all of the contents of Exhibit W9 were true. In that document he did not agree the wife was a major asset to Z Company. He said she had a good relationship with people. It was not true that "thanks to her we have won major contracts for [Z Company]". The husband said he did not at any stage write a letter containing that information. He stated that the contents of Exhibit W9 were prepared for a discussion he was to have with an officer at Z Company.
The husband said further, in relation to an event in which the wife met a government Minister of an Island nation, that she did not do so in any capacity as a Z Company representative. He denied he had asked the wife to represent Z Company in a meeting with a government Minister of an Island nation. He said it was a social event at which the wife attended, with others, because he was ill.
In relation to that part of Exhibit W9 headed "P2" the husband gave evidence that the contents were not, in the large part, true. He said the wife did have some contacts in Sydney; however, they were not in his opinion high level contacts. The husband said that, despite his knowledge of its untruth, he nevertheless recorded the contents of Exhibit W9 because he feared the wife would have been extremely upset had he refused to do so. He said: "I did what she asked".
In relation to all of the overseas trips on which the wife accompanied the husband he agreed these were, in large part, business trips. He agreed she attended social functions with him on those occasions. He agreed that some of those were associated with work. He said: "When I was with [Z Company] I travelled to most of these countries to do an audit. Most of the time she joined me on the way to or returning from Australia". He said it was only on a few occasions he entertained clients in his home whilst living in France. On those occasions he agreed the wife did cooking and shopping. He denied the wife had organised cocktail parties outside of the home for Z Company functions.
The husband agreed that in September 1991 the wife accompanied him on a promotional trip to Sydney with representatives from the Rhone region of France. He denied there were 150 "Presidents" of Rhone on that trip. He said there were 40 to 60 together with an orchestra and industrialists. He denied the wife had organised and hosted a farewell lunch in Sydney. He said it was a dinner in Kings Cross where "mostly we ate fish and chips". He said she may have telephoned the restaurant and made a booking. He acknowledged she organised some party games which the participants engaged in at that function.
The husband agreed that in 1991 he had been hospitalised. He conceded the wife stayed with him each day in hospital. She assisted him in bathing and helped with his personal hygiene. She attended at his work and picked up files for him. She accompanied him to medical appointments after he left the hospital and to the physiotherapist.
In relation to the domestic aspects of their life the husband denied the wife cooked 95 percent of the meals whilst they resided together. He agreed that on some occasions the wife pre-cooked and froze meals before she travelled to Australia whilst the parties were living in France. He agreed that in Australia she had prepared buffets for family functions. Whilst he also agreed that she had assisted in the entertainment of Z Company clients in Australia, he said there were not a large number of those occasions and they were usually entertained outside the home.
The husband agreed that whilst residing in France, he returned home for lunch. He conceded the wife prepared lunch for him on those occasions when she was present. He conceded that she prepared a great portion of the meals, but denied that between 1986 and 1988 that portion was as high as 99%. He said in France the wife did the greater part of the household washing. He was unsure of how much vacuuming she did. However, he agreed that he did vacuuming and he said that the shopping was shared. The husband conceded the wife had been helpful when H came to stay.
The husband was shown a document which became Exhibit W10 in the proceedings. There were two portions of this document which were marked with yellow tags. He was asked to read those parts. The parts read formed part of a hand written document dated 12 November 1991. It appeared to be under the hand of the husband. The two marked parts concerned the relationship between his daughter H and the wife. The letter describes that relationship as "excellent". That description appeared to be contrary to the relationship the husband was painting between the wife and H during the marriage. He was asked if those paragraphs were true. He said they were partly true but exaggerated.
The husband confirmed he pays child support for the parties' child in the sum of $900 per month. He does not pay any other expenses. He does not support the child attending M College. He said that although he agreed to enrol the child in that school in 1999 he does not believe the parties can afford the fees. In addition there appeared to be, based on his evidence, some disagreement between the parties about which "trust money" could or should be used to meet the child's school fees. The husband appeared to be suggesting the money said to be held by the wife in trust for the child should be applied to pay her school fees.
The child has not been to France with the husband since October 2000. The time he has spent with her since separation has been in Australia.
The husband said that in 2007 he spent every day with the child whilst she was in the Children's Hospital. He said she had been there for two to three months. Later in his cross-examination the husband agreed that the child had been in hospital from 6 March 2007 until 12 April 2007, not two to three months. The husband said that apart from that time, due to difficulties, he was only able to exercise his time with the child for about half of the occasions provided for in the orders. The orders provided for the child to spend time with him each alternate weekend.
The husband said he proposes to spend one to two months in France next year (2009). He will otherwise be in Australia and available to spend time with the child.
The husband said he had opened an account at Westpac for the child. He had done so recently. He had deposited about $200 into the account. He wanted her to learn to manage her own money.
In relation to the accounts which the wife holds as "[the wife] as trustee for [the child]" the husband said he was aware the wife's father had provided some funds for the child.
The husband denied that in July 1994 he and the wife separated.
The husband agreed that in October 1997 the wife's father became ill and was moved to a nursing home. He said that he more than occasionally assisted the wife's father in showering, and gave a similar response in relation to assisting to provide medication. He said that on most occasions he transported the wife's father to and from the nursing home.
The husband agreed that in May 1996 the wife travelled with the child to France.
The husband was asked to look at his Financial Statement sworn 30 January 2004. He agreed that at that time he had a share portfolio managed by Banque Transatlantique. He believed that in January 2004 the fund was worth between AUD$30,000 and AUD$40,000. He said it was difficult to remember because there were great fluctuations in the value. At that same time he said he had a limited amount of money in cash in that bank.
The husband thought at that time he had savings in an entity which was called PEL. He believed this totalled 120,000FF which he thought was worth about AUD$30,000 at the time.
The husband said that he does not have any social security in France at the moment and therefore his medical expenses are not covered whilst he is there. The Government does not pay those medical expenses but they have in the past and they may do so in the future when the husband's "financial situation is regulated." He expects that will happen in the future.
The husband was taken to his Financial Statement sworn on 20 October 2008. He agreed he had a Westpac MasterCard Gold Card in his own name. He also had an ANZ credit card in his own name. He denied he had a credit card with Ms A. He said he had a joint account with Ms A, including an account in France. He and Ms A share equally the expenses for their cohabitation. He does not know what her income is.
The husband was taken to a document titled "Cohabitation Agreement". The document was referred to in paragraph 140 of his affidavit. The document is included in the wife's documents and exhibited to her affidavit as number 41. That document is headed: "Financial Agreement".
The husband was asked whether he planned to marry Ms A. He said "no". He was aware that a subpoena had been issued to Ms A seeking production of her financial documents.
The husband said that after these proceedings were concluded he will re-evaluate his participation in the payment of school fees for the child.
In relation to the trust accounts said to be held by the wife in trust for the child, the husband also agreed that there were shares held by the wife as trustee for the child. He agreed that shares had come from the wife's father's estate for the child. I note that no detail of same was provided by the wife.
She confirmed that she had bought shares in Ariadne. It appears in context that this was about the time the parties' relationship commenced.
The wife agreed that in October 1986 there was a relationship between herself and the husband. She agreed that during the cross-examination of the husband he was taken to a document which set out details of the husband having purchased shares in Ariadne in his former wife's name. She agreed that she became aware that the husband had purchased 53,300 shares in Ariadne in August 1986. She was aware of that prior to the time she signed her affidavit. She was aware that the cost of the shares was approximately $164,000. The wife further agreed that in addition to the 53,300 in Ariadne, the husband had purchased another 5,000 shares in that company. She also agreed that she became aware that in August 1986 there were 58,300 shares purchased in Ariadne in the husband's former wife's name. She was aware of that before she signed her affidavit. She agreed that the total purchase price was somewhere in the order of $182,000. She conceded that the price of the 53,300 shares purchased was about $3.08 per share. The price of the 5,000 shares purchased in Ariadne was $3.14 per share.
The wife agreed that in 1986 the husband told her he was purchasing shares. He did not tell her at that time he had an overdraft with Banque Nationale de Paris. She became aware of that later and became aware that he was using the overdraft for trading shares. She knew of that prior to the time she signed her affidavit.
The wife was taken to document number 3 in her book of exhibits to her affidavit. This is a statement from the Banque National de Paris for the husband commencing 1 October 1986.
The wife agreed that she had instructed her counsel to cross-examine the husband on that document. She agreed she heard it put to the husband that on 10 October 1986 he had an overdraft of $143,000. She said at paragraph 26 of her affidavit she had referred to this overdraft. Paragraph 26 sets out the property and liabilities of the husband as asserted by the wife as at the date of cohabitation. The wife had asserted the date of cohabitation was about 10 October 1986.
In answer to questions from the husband's counsel, the wife agreed that she did not refer in that paragraph to any shareholding of the husband in Ariadne. In so doing she was aware that the husband had a very substantial benefit of shares in Ariadne. She was taken to the statement from Banque Nationale de Paris and her attention was drawn to an entry on 10 October 1986 showing the purchase of 3,653 shares in Ariadne. The purchase price was $18,676. She acknowledged that was on the statement. She agreed that those shares were obviously in addition to shares purchased by the husband on the 6 August 2006. It was not referrable to the 5,000 shares which had been purchased earlier.
The wife's attention was drawn to the statement from Banque Nationale de Paris for the date 30 October 1986. She agreed that statement showed $27,000 being transferred to Banque Nationale de Paris in Singapore and $30,000 being transferred to UAB in Geneva. Further, she acknowledged that before she signed her affidavit she knew the husband had in 1986 an account in Tokyo. She accepted that in October 1986 the husband had AUD$6,600 in that Tokyo account.
The wife further acknowledged that the particular statement from Banque Nationale de Paris for October 1986 showed that on 30 October 1986 there was transferred into that account just under AUD$200,000. The wife was asked why she made no mention of those funds in her affidavit. She said it was "Because my affidavit was referrable to a start date at the 10 October 1986." She acknowledged that the deposit of nearly $200,000 on 30 October arose from the sale of Ariadne shares, being just under 50,000 shares. She acknowledged the $179,500 from the sale arose as a result of the sale of Ariadne shares which had been purchased in the husband's former wife's name in 1986. Notwithstanding that evidence the wife in her written submissions raised an argument that there was no evidence that the husband ever owned the Ariadne shares which had been purchased in his former wife's name.
The wife acknowledges that in his evidence the husband had said that at the date of cohabitation he had a debt of $117,358. She also acknowledged that he said he had a share portfolio of $176,000. It was put to her that his evidence must have been correct. She said, "He said the cohabitation commenced in February 1987." It was put to the wife that in October 1986, it now appears, on her own evidence, that the husband had a debt of about $117,000. She acknowledged that was correct. The wife also acknowledged that as at 10 October 2008 the husband must have had shares (beneficially owned by him) to the value of AUD$199,000. The wife further acknowledged that after the sale of the shares on 30 October 1986 the husband must have had another 10,000 shares in Ariadne which he still held.
The wife was asked why she did not mention the above conceded facts in her affidavit. She said, "I could not confirm he didn't have an overdraft somewhere else." It was put to the wife that her affidavit was quite misleading, given the knowledge she had of the husband's financial circumstances in October 1986. She replied. "No, because I couldn't confirm he had those shares at the 10 October 1986." The wife acknowledged that the shares retained by the husband either in his name or his former wife's name after the sale of those on 30 October 1986 probably had a value of AUD$39,000 to AUD$40,000.
Again, having had her attention drawn to the statement from Banque Nationale de Paris for October 1986, the wife acknowledged that at 30 October 1986 the balance of that account was in credit in the sum of $2,580. That was the case, she agreed, after $57,000 had been sent overseas by the husband.
The wife was then taken to Exhibit W7. This was a letter to the husband from Banque Nationale de Paris, Singapore branch, and dated 7 November 1986. The wife agreed she had caused the husband to be cross-examined on this document. She agreed she had this document with her prior to signing her affidavit. She was asked whether she had read the document thoroughly before annexing it to her affidavit. She said, "I saw the overdraft. That's the part I read." She said she did not recall reading the whole document. She agreed that in her affidavit she had made specific reference to the overdraft. She agreed that the terms and conditions of the overdraft were set out in the letter. She agreed that it was very important to give a balanced picture in her affidavit. She denied she had chosen to leave out of her affidavit important aspects referred to in that letter. She agreed the letter provided as a condition of the overdraft that the security was a pledge of shares in the name of the husband. The amount of the overdraft must not exceed 60 per cent of the value of the share portfolio. The shares were to be diversified and marketable blue chips.
As a result of the letter the wife conceded that if the husband had borrowed the $100,000 he would have to have lodged shares worth $160,000 with the bank to be within the parameters of the conditions of the loan.
The wife conceded that at the time she signed her affidavit she knew the husband had drawn on the overdraft and she further knew he had complied with the conditions.
She further acknowledged that her counsel had cross-examined the husband in relation to a further letter of July 1987 which stated the overdraft on the subject account had grown to $143,000 in debit.
The wife agreed that in paragraph 26 of her affidavit she had specified the liability of the husband in respect of the overdraft to Banque Nationale de Paris, Singapore branch, at $100,000 as at the date of cohabitation commencing. She agreed that as at 10 October 1986 she had no evidence to show the husband had in fact drawn on the overdraft.
It was put to the wife that notwithstanding her ability to include in her affidavit the liabilities of the husband, she was not prepared to refer to the $199,000 paid into the Banque Nationale de Paris on 30 October 1986. The wife said she overlooked that.
The wife was taken to page 52 of her affidavit, paragraph 389 sub-paragraph 15(f). This paragraph was struck out by me in the reading of the affidavit. Nonetheless, it was available for cross-examination and the wife's attention was drawn to it. It was pointed out that the contents of that paragraph made it very clear the wife knew that on 6 August 1986 the husband had transferred $158,453 to an account held by his former wife to cover part of the cost of $167,302 for the purchase of shares in his former wife's name. The wife acknowledged she had statements in relation to all those accounts. It was put to the wife that in light of all that knowledge she had deliberately chosen not to include details of the sale of the Ariadne shares in October 1986 in her affidavit. She responded, "I didn't know what debt was with it."
The wife acknowledged that she knew the husband had $180,000 from the sale of his Island property. She said that was put on the market in late 1988 and sold in 1990.
It was put to the wife that in October 1986 the husband had access to the following assets:
Access to a substantial portfolio of shares in Ariadne. She agreed.
Assuming the advance from the Banque Nationale de Paris in Paris had been complied with in terms of the conditions of that advance, the husband would have held a further $160,000 in shares. She agreed.
Approximately $56,000 in accounts overseas. She agreed.
Approximately $6,600 in an account in Tokyo. She agreed.
She agreed that the husband's recollection that at the time of cohabitation he had approximately $70,000 in cash in banks was correct.
The wife was taken to paragraph 19 of her affidavit.
The wife agreed the shares in public companies which the husband had listed as totalling $40,565 included 2,650 shares in Ariadne which he had valued at $3.42. She agreed she ultimately sold those shares at a substantial loss of $7,800, realising only about $2,000 from the sale.
In late 1988 the wife gave up her employment to travel to France. She agreed that she was not employed from the end of 1988 until October 2000. Apart from holiday pay and a payment from her former employer she was dependent upon the husband's income. She said that she also had her investments.
In early 1987 the parties purchased the N Street property. The interest rate on the mortgage was 6 per cent as compared to the market rate of 16 per cent. The wife agreed the special rate only applied until mid 1989 and then the parties paid market rate. The husband had contributed $28,000 towards the purchase of the property prior to the settlement of same. The wife agreed that following the parties moving to France the property was rented and with the exception of the first period when the husband had "leased it for cash" the income had been retuned to her. She acknowledged that half of the income was correctly the husband's.
In the 1989 tax year the wife acknowledged the rental property ran at a loss. In the 1990 year the gross rent was $12,400 and the expense $15,500. The loss, the wife acknowledged, was made up from each of the parties' income and resources.
In the 1992 tax year the rent exceeded the outgoings by $3,300. The wife acknowledged that in 1992 $10,000 was paid in reduction of the mortgage from savings in a BT Trust Account. On 1 May 1995, $21,000 was paid by the husband from the parties' joint account in France. The wife acknowledged that the funds for that account came from the husband's income.
When the H Street property was purchased in 1998 it cost $600,000. The sum of $300,000 was borrowed and the balance was made up of funds in accounts in France. The funds in those accounts were predominantly provided by the husband. Ultimately, the sale of the N Street property was used to discharge the mortgage on the H property.
The wife acknowledged that in May 1994 she returned to Australia. Between May 1994 and May 1996 the husband predominantly lived in France. During that period the wife was not in employment. It was put to the wife that the husband had provided funds to support her during that period. She denied that and said it was mainly from her father. She agreed the husband provided significant funds towards her support. She claimed to also have investment income during that period. She agreed her investment income was not significant.
The wife was asked whether she had prepared a schedule of the income earned by her during the course of cohabitation. She said she had and that document was identified and became Exhibit H10.
The wife was asked about her evidence that between May 1994 and May 1996 the husband had only visited Australia once every couple of months. It was put to her that during that period he visited more frequently than once every two months. She agreed that on two occasions he had visited twice in the one month. She agreed that her recollection of those visits was incorrect. The wife further agreed that during that period although she claimed she was separated she agreed that the husband stayed with her when he was in Australia.
In relation to the wife's claim that she holds money in trust for the child, she agreed there was nothing in writing for the establishment of the trust and the bank accounts themselves are the only evidence of the trust (there are also shares held by the wife "for [the child]" although no details were provided as to the number or value of those shares). She denied she had opened most of the accounts herself. She said they were her father's accounts which she took over. She agreed the account held by her father with St George Bank entitled '[OU] in trust for [the child]' was closed and the money transferred to an account in the wife's name as trustee for the child.
The wife agreed that the source of funds for accounts in the child's name was a variety of accounts. The wife denied that some thousands of dollars deposited in the accounts had come directly from either herself or the husband. She agreed that she had recently withdrawn $40,000 from the accounts for her own benefit; however, she said that she transferred $40,000 worth of shares in her name to the Child Trust in exchange for that cash. The wife said she had not used any of the funds she holds to pay the child's education fees because the funds in the Luxembourg account are for her education and the funds she holds are for her future. She said the bulk of the monies in Australia were sourced from her father and/or her compensation monies. The wife said that in the preparation of her affidavit she could have set out details of what funds had come from her father but, she said, "My health didn't allow it."
The wife was asked about paragraph 238 of her affidavit. Although that paragraph was not read, the wife was taken to the first sentence where she had set out as follows:
In relation to the trust accounts now held by the wife, being bank accounts, she said the income from the trust was/is returned in her tax return on which she pays personal income tax.
The wife acknowledged she could close all the bank accounts she holds for the child with St. George Bank tomorrow. She also acknowledged that she could pay those funds into an account in her sole name.
The wife said she had used some of the interest paid into her account from the child's monies to purchase shares for the child.
On balance I do accept the evidence of the husband to that of the wife where there is no documentary, corroborative evidence to support either party's evidence.
The wife displayed a very mean-spirited attitude to her evidence so far as it related to the husband. Examples of this related to her evidence about the assets and liabilities of the husband at about the date of the cohabitation. She gave evidence in her affidavit about an overdraft which the husband had with the Banque Nationale de Paris in Singapore. Her counsel cross-examined the husband about the overdraft. In that cross-examination the husband had great difficulty remembering the circumstances of the overdraft. A letter was produced to him which had been included in the book of exhibits filed with the wife's affidavit under tab 32. The letter made it clear the overdraft was secured against shareholdings which were held by the bank. The husband knew he had been share trading at about the date of the cohabitation however, was unable to recall all the details of same. Evidence emerged in the correspondence, which the wife had possession of at the time she signed her affidavit, that it was a condition of the overdraft that the amount of the advance did not exceed more than 60% of the value of the share holding held by the husband. The wife claimed she had not read the conditions of the loan. The wife further said she was not prepared to set out detail of the shareholding held by the husband at the date of the cohabitation because he may have had a further overdraft which was not known to her.
Each of the parties provided extensive written submissions on the parties' credit. I have had regard to those submissions even though I do not reproduce those submissions at this point.
He says further that during the time at the N Street property he assisted with 50% of the cooking, cleaning and other household chores. He further purchased other household items shortly after moving into the property (see paragraph 23 of the husband's affidavit).
At paragraph 116 of her affidavit the wife said she cared for and entertained the husband's daughter, H, when she visited the husband and encouraged the relationship between the husband and his daughter. She also said she cooked and shopped for H. At page 12 of the wife's written submissions it is noted the husband refuted the wife had undertaken such care for H. It was submitted by the wife that the husband's statement in Exhibit W1 concerning the wife and H (said by the husband to have been dictated by the wife and to be only partly true) should be considered in light of the findings on credit as between the parties. At page 12 of submissions, Counsel for the wife submits that on the findings relating to credit of the parties the wife be believed over the husband in this instance.
At paragraph 116.6 of her affidavit the wife said she managed the family finances after the parties moved to France with the exception of the husband's offshore accounts and the period in which she says the parties were separated from May 1994 to December 1996 (whether there was a separation being an issue between the parties).
The wife said that during May 1994 and some time in 1997 the parties had a housekeeper, handyman and lawn mower person who was paid for by her father. She said between 1998 and 1999 the parties engaged a housekeeper whom she and the husband paid for (see paragraph 117 of the wife's affidavit).
At paragraph 151 of her affidavit the wife said that when the parties reconciled in 1996 following separation in 1994 the husband moved in to live with the wife and her father at the E Road property. The parties remained living there with the wife's father until December 1998. During that time the wife says her father met all outgoings with respect to the household except for the telephone expenses which were met by the husband and the wife (paragraph 153 of the wife's affidavit). At paragraphs 155-159 of her affidavit the wife says that from the time the husband moved into the house, with she and her father, he did assist in the maintenance by painting a few of the rooms of the house, doing some gardening and providing some assistance for the wife's father as his health deteriorated.
The husband says he shared (with the wife) in the washing, cleaning, feeding and administering medication and general care of the wife's father during the day and often at night over a period of two years while the wife's father became very frail (see paragraph 85 of the husband's affidavit). At paragraph 89 of his affidavit he contends that he made improvements to the wife's father's house (by way of painting the kitchen, living room, corridor and two bedrooms) and that although the wife gave some assistance this was limited due to her injuries. He attended to the general "handyman" tasks around the home and shared the gardening duties with the wife. He paid the gardener. He says that because of the injuries the wife had to her neck and shoulder he attended to a majority of the domestic duties around the home, such as cleaning and washing while the wife attended to the cooking and shared the care of the child (at paragraph 90). In early 1998 the wife's father was moved to a nursing home and the parties visited him daily and spent time with him (see paragraph 91 of the husband's affidavit).
At paragraph 40 of his affidavit the husband said that during the marriage the wife took over all of the parties' financial affairs, including arranging and managing all of the parties' collective accounts and the husband's personal account.
Following his back injury in 1991 the husband said the wife attended to him for a few weeks before leaving to visit her father in Australia (see paragraph 45 of the husband's affidavit). The husband said as a result of this injury he continues to suffer pain and require ongoing treatment. Following the injury the husband said he received the equivalent of social security payments of approximately 1000FF (AUD$217) per month in addition to his salary to cover the cost of treatment. This payment the husband said had recently been increased to approximately €200 (AUD$322) (see paragraph 45 of the husband's affidavit).
In 1992 the parties moved to Paris as the husband became a manager in Z International; the husband's employer, Z Company, having merged with Z International a few years earlier (see paragraph 62 of the wife's affidavit). The husband said when they moved to Paris he supported the wife and assisted with most of the domestic chores. This new position did not include paid accommodation (see paragraph 46 of the husband's affidavit).
Paragraphs 101-110 of the husband's affidavit detail the husband's contended contributions following the family taking up residence in the H Street property. The husband says that during this time he continued to share the domestic duties in the same manner as when the parties were living at the wife's father's house except for a short period of time when they employed a cleaner who attended every two weeks to clean the house. In addition, he says that his share of the care for the child was the same as before when living at the wife's father's house (see paragraph 106). The child had started pre-school and the husband would drive her to and from pre-school. During this period neither party was engaged in paid employment and the husband continued to receive his pension from the retirement package he had received until age 62. He says that during this time he also continued to care for and visit the wife's father and collect him from the nursing home to visit the family. He transported him to medical appointments either with the wife or by himself.
As noted later in these reasons, s 79(4)(c) does not include an assessment of the contributions made by the husband to the care of the wife's father. It is a matter which can only satisfactorily be considered under s 75(2) of the Act.
Although the wife tells us at paragraph 147.2 of her affidavit that (apart from $90,000 and $121.51) the balance of the compensation funds received by her in 1999 were used to buy shares in her name and for [the child] after separation, she once again fails to provide any specific details.
As a consequence, it is submitted on the husband's behalf that the investments held in the parties' daughter's name should be treated as the assets of the parties for the purpose of division.
The wife's submissions are as follows:
In relation to the balance sheet between the parties which became Exhibit X3, there is a dispute concerning items 40 and 41 being assets held in [the child's] name.
Item 40 in the balance sheet consists of two accounts, one being an account with the Commonwealth Bank [northern Sydney] referred to in evidence as the "dollarmite" account and the Credit Lyonaisse account in Luxemburg. These total $237,102. The husband acknowledges at H para 99 that the Credit Lyonaisse account is in the name of [the child]. Both parties are signatories to the account. The wife says that the account was established by both parties for the purpose of setting aside funds for [the child's] education. The funds in the account were sourced from funds held in an account in [the child's] name, as well as accounts in the wife's name with Societe Generale in France to which the husband contributed: W1, para 233.
In cross examination the husband conceded that he refused to agree to the wife's request that she be able to draw from the Credit Lyonaisse account, then referred to as Credit Agricole account, in order to pay [the child's] school fees. This was apparently because he did not agree to [the child] remaining at her present school notwithstanding the fact that he agreed that he had signed the enrolment form to enrol her at that school. The husband also asserted in cross examination that the wife had substantial amounts of money under her control in accounts said by her to be accounts for [the child] and that she should use those funds not the funds in the Credit Agricole account to meet education costs.
In cross examination the husband conceded that a large part of the funds in the accounts which comprise item 41 of the balance sheet came from the wife's father. The wife also acknowledged in cross examination that some of the funds in these accounts came from her father but was not able to indicate the precise amount.
In cross examination the husband acknowledged that the wife's father had made gifts of money to [the child] during his life, apart from any amount provided for [the child] upon his death, and he conceded that he was aware that his wife had placed these funds in accounts which the wife was accumulating in accounts "as trustee for [the child]". It was conceded by the husband's counsel at the hearing that the accounts referred to in W1, para 237, which are the accounts referred to in item 41 of the balance sheet, are all accounts or shares held in the name of the wife "as trustee for [the child]".
Having regard to the evidence of both parties concerning the accounts referred to in items 40 and 41, it is submitted that there is ample evidence of the intention of both parties to create a fund to be held in trust for [the child], the fund being comprised of funds in the various accounts referred to in items 40 and 41 being the accounts referred to in W1, paras 236 and 237. The parties' intention in this regard is corroborated by the manner in which the account holder is described in the title of each account.
The fact that the wife withdrew funds from an account held in trust for [the child] shortly prior to the hearing in order to assist with funding legal costs is not evidence contrary to her position with regard to these accounts since she transferred shares which she held for herself into the name of herself as trustee for [the child] to a similar value to the amount withdrawn from the account. That is, she sold some of her shares to herself as trustee for [the child] and received the proceeds of sale being of equivalent amount to the value of the shares sold. This is not inconsistent with the assertion that she is a trustee of the accounts for [the child]. It corroborates her assertion.
For these reasons it is submitted that the funds held in [the child's] name and in trust for [the child] referred to in items 40 and 41 of the balance sheet should not form part of the balance sheet. If this submission is rejected then it is submitted that the assessment of contributions for the wife which is referred to later in these submissions must be increased to take account of the contributions made to the funds in those accounts by the wife's father.
The wife made the following submissions in response:
The wife was shown a number of account books which she had produced. She agreed that the funds in the child's trust fund were derived from a variety of accounts. She was unable to state how much had been held in the original accounts created by her as trustee for the child, however she thought it may have been as much as $20,000. The wife agreed she had provided funds for the purchase of shares in the child's name.
The following was put to the wife in cross-examination: "You access these funds ([the child's] trust) as and when you wish." The wife replied: "Yes, recently."
The wife agreed she had withdrawn $40,000 from the child's trust money. However, she said that she transferred $40,000 worth of shares to her trust.
The wife said that the bulk of the money in the Australian trust account was sourced from her father and from the wife's compensation money. Given that only $20,000 (on the wife's evidence) had come from her father the bulk of the balance of the account and share value ($313,618) must have come from the parties' assets.
The wife conceded that at the time she swore her affidavit she was in a position to identify precisely how much of the trust fund had come from her father; however, she said that her health at the time did not allow that.
The wife relies on the receipt of a compensation payment in December 1999 of $147,558. She says that $90,000 was applied to buy her brother's share of the E Road property. She says that the balance was used to buy shares in the names of the wife and the child. In her evidence the wife provided no further details of the amounts contributed towards the share purchases for the child.
In relation to the compensation payment received by the wife she relies on the whole of the amount received as a contribution to the marriage (see exhibit W2). Such a reliance could be seen as unsupportive of a contention that such money (or part thereof) should be seen as trust money for the child and excluded from consideration in the division of property between the parties in anything other than a minor way (some aspects of section 75(2) may require that the fund be taken into account).
The wife has filed tax returns since the establishment of the "[Child's] trust" under her name, which includes all of the income of the trust, generated in Australia, as her own income. No explanation was provided for why a trust tax return was not lodged.
The wife conceded that in relation to the funds in the Luxembourg account they were funds that were in accounts in the wife's name and in accounts in the child's name however, almost all of the funds originally came from the husband. It is unclear whether the wife has included the income from the Luxembourg accounts as her own income when lodging her tax returns each year.
The wife was cross-examined about the source of funds now said to make up the child's trust money. She had identified that $89,387 of the funds had been her funds which she transferred to the St. George share fund account.
She was cross-examined about the funds which allegedly came from her father into a trust for the child. One of the accounts identified was an account into which her father's pension was paid. She also identified an account which stood in her name until 2003. However, she was unable to say whether the funds in that account were now in accounts which were said to be "[the child's] money". The evidence supports a conclusion that various accounts held by the wife's father said to be in trust for the child had interest paid to an account which was his everyday expenses account. It at least seems that the interest was available if not used by the wife's father to support himself. This then raises an inference that the funds in accounts held by the wife's father and called "trust accounts for [the child]" were in fact his funds and not trust funds at all. The wife's father's will was not provided to the Court to see if there were any specific gifts made to the child.
In relation to the share dealings in the share portfolio said to be in the child's name, the wife said that any capital gain made from the sale of her shares was returned in the wife's tax return. This then raises concerns about the tax figure set out by the wife in her Financial Statement filed 17 October 2008.
Following receipt of the submissions from each party I invited further submissions in relation to section 85A of the Family Law Act and asked the following question:
The parties may continue to set those funds aside for the benefit of the child if they so desire. I have no doubt the wife will endeavour to preserve a fund for the child as she appears to have been intent on that course for some years. I think it is more than likely the husband will strive to do the same.
In December 2002 the husband purchased a unit at U Street, inner Sydney ("the [U] Street property") for about $432,000. He contributed to the purchase price from the T Trust in two transfers of approximately $43,844,27 and $184,577.14. The balance was paid by way of a mortgage advance from Westpac for the sum of $280,000 (paragraph 137 of the husband's affidavit). Following the purchase of the U Street property the husband commenced to live there (paragraph 139 of the husband's affidavit). Exhibit RGL 54 to the husband's affidavit contains copies of the bank statements and transfer of funds regarding this purchase. The husband said that following this draw down of funds the T Trust was dissolved and closed upon his instructions. Ex RGL 55 is the correspondence regarding the dissolution of the trust (paragraph 138 of the husband's affidavit).
At paragraphs 152-158 of the husband's affidavit appear under the heading of "Application of Funds Post Separation". He there set out his evidence on that topic.
In or about March 2001 he transferred the total funds of his P 1 and 2 accounts which totalled the sum of €25,078.78 (AUD$45,822) to his account in Credit Argicole in a town in France.
In or about April 2001 the husband said he used €15,000 (AUD$26,785) of the monies from the P funds to purchase shares in a variety of French companies. About this time the husband also purchased a 1988 Toyota motor vehicle for 12,000FF (€1829 or AUD$3,266) and this purchase was also funded by the monies transferred from the P funds.
In mid 2001 the husband transferred the sum of approximately €8,000 (AUD$13,223) to an account in the name of his sister in France. That sum represented his share of the funds required for the upkeep of the E property and the funds were once again sourced from the monies in the P funds accounts. In or about November 2001 the husband said his sister transferred the sum of €3,048.98 (AUD$5,211) to his account with Westpac bank.
Exhibit RGL 60 to the husband's affidavit is a collection of documents relating to the P funds and the application of said funds to the transactions noted above.
On or about 8 February 2006 the husband made a written request for his account with Credit Lyonnais/ Argicole, Luxembourg to be closed. The balance of the account at the time of closing was €40,500 (AUD$64,233.24) and the husband had the balance transferred to his home loan on the U Street property. This credit was confirmed by Westpac Bank on 14 February 2006. Exhibit RGL 61 to the husband's affidavit is a copy of the request made by the husband.
The submissions of the husband suggest the Court should infer the husband's paid legal costs ($91,114) together with the funds held on deposit by his solicitor ($76,110) came form his savings referred to in paragraph 119 of his affidavit. Such inference seems reasonable. When those sums are added to the $51,000 held by the husband as set out in the balance sheet the husband says this accounts well for the funds he had at the date of separation.
At paragraph 114 of his affidavit the husband said in or about 2000 he transferred approximately $3,200 to his daughter H after she had moved to Paris and was staying with the husband's brother. He then transferred a further AUD$9,000 to her to pay debts which H had incurred while staying in Paris. Those funds came from the husband's French bank accounts.
At 131 of the affidavit of the husband he said that on 4 December 2000 he transferred approx 200,000FF (€30,488 or AUD$49,517) from the T Trust to one of the Credit Lyonnais accounts of the husband. He said the funds were paid to R Lockie. The payment was pursuant to an earlier agreement (to pay her €91,500 or AUD$166,000; plus interest, in addition to the 200,000FF mentioned above) following the husband failing to comply with the divorce Court Orders to purchase an apartment for her. This agreement was said to be made to avoid further litigation with R. Ex RGL 51 to the husband's affidavit is a copy of the agreement dated 19 December 2000.
On 12 February 2003 the husband signed an acknowledgement of debt with his daughter H and a copy of the said acknowledgement is Exhibit RGL 56 to the husband's affidavit. This is coupled with a letter to H dated 19 February 2003 (paragraph 141 of the husband's affidavit). By this document the husband holds himself bound to pay, when possible, an amount equivalent to the money which was in the T Trust account and which he used to buy the U Street property.
On 22 August 2003 the wife was discharged from the RNS Hospital after being admitted on 27 July 2003 with illness. She said she still suffers from occasional dizziness, vomiting, nausea, loss of balance and low blood pressure. She also suffers from depression; however, this is controlled with medication and counselling. On 7 March 2005 the wife said she fell on her back at home and has suffered pain in her lower back and on occasions, sciatica, since. At the time of the fall she required the assistance of a walking stick for two months.
The wife said she also suffers from daily pain in her eyes. In April 2005 and December 2005 the wife underwent surgery for debridement of the cornea in her left eye and, at times, suffers from ulceration of the cornea. The most recent occasion was on 23 August 2006 when she went to hospital for treatment. The wife said the symptoms in her eyes are exacerbated by concentration when working at a computer or reading for long periods. In December 2005 the wife also underwent surgery for punctal cauterisation of both eyes. She said she experiences severe neck pain, headaches and migraines, especially when doing paperwork or working on a computer, and knee pain when sitting or driving. She suffers from pain in her right elbow and shoulder and restriction in movement since about June 2007. Her diabetes, diagnosed in 1994, is controlled by diet. The wife said it is the pain and the physical restrictions which she experiences which prevent her being able to undertake full-time employment since her accident in December 1995. She said her health is managed by a number of specialist medical practitioners.
At paragraph 51 of his affidavit the husband said that during her return visits to Australia the wife told him she was attending upon a psychiatrist. He did observe the wife take medication. He says he attended with the wife upon her psychiatrist in both Sydney and Paris.
Dr S is the single medical expert in this matter. He swore an affidavit on 16 November 2006 (filed 17 November 2006) which annexes his report dated 10 October 2006. In that report Dr S summarises the wife's medical history as follows based on the documentation provided to him in preparation of creating the expert report:
The finding I make in relation to this issue is that Ms A owns a property in coastal New South Wales in which she and the husband live from time to time. She has an income which enables her to match the husband dollar for dollar in their joint support. Whatever the other costs of maintaining and servicing the property in coastal new South Wales might be, she meets those from her own resources. Ms A and the husband do not propose to marry. It seems clear they are intent to keep their financial affairs separate and each contribute equally to the day to day cost of cohabitation.
To the extent referred to above Ms A is a resource of the husband's.
Given that I have found the money and shares held in funds designated as the child's is the parties asset, it is difficult to determine what the wife's needs might be in a financial sense, to support herself and the child. Clearly she will have basic expenses commensurate with a reasonable standard of living. She has to meet outgoings on a residence. She should have an opportunity to holiday overseas, if she so desired. Some of her expenses are specified in her Financial Statement.
The wife received the rent income from the [N Street] property from 1988 to 1995 (wife's affidavit paragraph 101).
The wife did the vast majority of the cooking and preparation of meals during the cohabitation of the parties, including doing the shopping, cleaning and cooking required to entertain friends and clients of [Z Company] and relatives of the parties (wife's affidavit paragraph 96-97 and 116).
The wife supported the husband in his employment by travelling with him on many overseas trips and thereby provided him with companionship on those occasions (wife's affidavit paragraph 106 to 112.4).
The wife entertained persons associated with the husband's employment and provided support and assistance to him in his employment (wife's affidavit paragraph 107 to 112).
The wife's father paid for housekeeping, handyman and lawn mowing services for the parties between 1994 and 1997 (wife's affidavit paragraph 117) and provided gifts to [the child] (wife's affidavit paragraph 238).
The wife attended to general household and domestic chores such as cleaning, shopping, and washing of clothes during the cohabitation (wife's affidavit paragraph 116.7).
The wife received an inheritance of $25,513.63 from the estate of her mother in 1991 which she later applied to the purchase of shares in 1996 and 1997 (wife's affidavit paragraph 131 to 133).
The wife received compensation for personal injuries sustained in an accident in December 1999 in the net amount of $147,558.81 which was applied as to $90,000.00 to buy her brothers share of the [E] Road property, to buy shares in the name of the wife and [the child] and to pay $121.51 to discharge a borrowing on the [H] Street property (wife's affidavit paragraph 146 and 147.
The wife's father paid outgoings in relation to the [E] Road property from May 1994 to December 1998 except for telephone expenses including when the parties occupied that property from December 1996 to December 1998 (wife's affidavit paragraph 153).
The [E] Road property was available to be used and was used by the parties to operate a business between January and August 1997 (wife's affidavit paragraph 154).
The husband and the wife contributed loan funds in the sum of $300,000.00 to purchase the property at [H Street] to which they also applied their joint savings including savings held on deposit by the wife (wife's affidavit paragraph 160).
The wife applied $300,067.20 less costs from the proceeds of sale of the [N Street] property to reduce the mortgage on the [H] street property (wife's affidavit paragraph 161).
The wife contributed to the husband's welfare during the marriage by providing him with companionship and emotional support. She provided him with bathing and personal care when he was hospitalised in 1991 and after his discharge from hospital, accompanied him to medical consultations and attended to his claims for reimbursement of his medical expenses (wife's affidavit paragraph 112.5).
After separation the wife paid the outgoings in relation to the [E] Road property from April 2001 to July 2003 (wife's affidavit paragraph 173).
The wife provided most of the day to day care, supervision and emotional support for [the child] (wife's affidavit 251 to 265).
In 2002 the wife received an inheritance from the estate of her father being a sum of $43,365.00, furnishings and household effects, shares to the value of $2,886.00 and a 24/58 share in the [E] Road property (wife's affidavit paragraph 195).
The wife applied part of the sum of $43,365.00 from her inheritance to pay for improvements to the [E] Road property (wife's affidavit paragraph 196).
The wife paid to purchase the interest of her brother in the [E] Road property in the amount of $90,000.00 from her savings being her compensation monies and $180,000.00 from a loan from Westpac (wife's affidavit paragraph 197).
The wife paid living expenses for [the child] since separation (wife's affidavit paragraph 229, 231, 233, 240 and 246).
I find the contributions of the wife to the date of separation to be as follows:
I have not taken into consideration at this point the claimed contributions in relation to superannuation or the husband's pension's which I will consider hereafter.
I take into account that I have found the husband to have an assessed contribution to the wife's superannuation. There will be no splitting order and therefore the husband cannot receive any portion of the superannuation. The adjustment will have to be in the other assets of the parties.