ANOLICK & ANOLICK

FAMILY COURT OF AUSTRALIA

ANOLICK & ANOLICK

[2020] FamCA 983

FAMILY LAW – PROPERTY – final alteration of property interests between the parties after a marriage of 14 years duration – where husband brought into the relationship an established business which continued to be profitable and the means by which the parties accumulated wealth – where the husband’s contribution of the pre-relationship asset is regarded as a significant contribution for which he must be given credit over and above the individual contribution made by each party during the marriage.

FAMILY LAW – PROPERTY – s 75(2) factors considered – where wife awarded a modest adjustment for discrepancy in income earning capacity post final alteration of property interests.

FAMILY LAW – PROPERTY – treatment of certain monies of which both parties had benefit post separation and prior to final alteration of property interests.

FAMILY LAW – PROPERTY – where adverse credit findings in relation to wife did not impact on the assessment of her contributions.

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Jones v Dunkel (1959) 101 CLR 298
Stanford & Stanford [2012] HCA 52

APPLICANT:

Mr Anolick

RESPONDENT:

Ms Anolick

FILE NUMBER:

MLC

5060

2012

DATE DELIVERED:

30 October 2020
Amended pursuant to r 17.02A of the Family Law Rules 2004 (Cth) on 20 November 2020.

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

4-5, 12, 23-25 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC with Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Rickards Legal

Orders

That for the purposes of these Orders:
1.1Husband's corporate entities means the following entities:
1.1.1D Pty Ltd;
1.1.2KK Pty Ltd;
1.1.3LL Pty Ltd;
1.1.4MM Pty Ltd;
1.1.5B Pty Ltd;
1.1.6Z Pty Ltd;
1.1.7NN Pty Ltd;
1.1.8OO Pty Ltd;
1.1.9PP Pty Ltd;
1.1.10QQ Pty Ltd;
1.1.11RR Pty Ltd;
1.1.12SS Pty Ltd;
1.1.13TT Pty Ltd;
1.1.14UU Pty Ltd;
1.1.15VV Pty Ltd;
1.1.16WW Pty Ltd; and
1.1.17XX Pty Ltd.
1.2Husband's trusts means all trusts in which the Husband has a right, title or interest, including the following:
1.2.1The Anolick Trust;
1.2.2YY Trust; and
1.2.3MM Trust.
1.3The Wife's real properties means the real properties situate and located at:
1.3.1E Street, Suburb F in the State of Victoria, more particularly described as Certificate of Title Volume … Folio …;
1.3.2L Street, Suburb K in the State of Victoria, more particularly described as Certificate of Title Volume … Folio …;
1.3.3G Street, Suburb H in the State of Victoria, more particularly described as Certificate of Title Volume … Folio …;
1.3.4J Street, Suburb K in the State of Victoria, more particularly described as Certificate of Title Volume … Folio …; and
1.3.5M Street, Suburb H in the State of Victoria, more particularly described as Certificate of Title Volume … Folio ….
All previous orders (save for parenting orders) be and are hereby discharged.
That forthwith, the parties do all things and sign all documents necessary in their capacity as directors of ZZ Pty Ltd to instruct AC Accountants, AJ Street, Suburb H (AC Accountants), to prepare and lodge with the Australian Taxation Office amended financial reports and taxation returns for The Anolick Family Trust for the financial years ended 30 June 2016,30 June 2017 and 30 June 2018 and taxation returns for the financial year ended and 30 June 2020 at the equal joint expense of the parties, in the following manner:
3.1Rental income and expenditure for the real properties situate and located at 3 AG Street, Suburb H and 5 AG Street, Suburb H (the AG Street properties) is properly recorded for each financial year; and
3.2The net income received from the AG Street Properties for each financial year is distributed to the Husband in his capacity of beneficiary of the Anolick Family Trust.
That forthwith upon compliance with paragraph 3 of these Orders, the Husband do all things and sign all documents necessary to instruct his accountants to prepare and lodge with the Australian Taxation Office amended taxation returns for the financial years ended 30 June 2016, 30 June 2017 and 30 June 2018, and his 30 June 2020 taxation return at the Husband's sole expense.
That the husband do all things and sign all documents necessary to discharge the Commonwealth Bank of Australia mortgage (mortgage number …06C) (mortgage) registered over E Street.

That the Husband pay to the Wife's solicitors Rickards legal trust account BSB … Account number …57 (Reference …) for and on behalf of the Wife , the sum of $2,006,508 (the Payment), such sum to be forthwith paid from the R Street proceeds currently held on trust by Lander and Rogers, with the balance to be released to the husband, but with the sum of $45,500 from the Wife's entitlement to be held by the wife’s solicitors until the issue of the assessments referred to in paragraphs 3 and 4, and that sum to be applied to the wife’s share of the taxation liabilities provided in paragraph 7 .
Upon the issue of Notices of Assessment against the Husband arising from the matters referred to in paragraphs and 4 hereof, the parties bear any such assessments (and the assessment of taxation and General Interest Charge payable by the husband arising from the Anolick Family Trust income declared by him in his 2019 and 2020 taxation return) as to 63% by the husband and 37% by the wife, with the necessary payment to be made within 7 days of receipt of such assessments.
That contemporaneously with the Payment:
8.1In relation to the Husband's corporate entities:
8.1.1The Wife assigns to the Husband any credit loan account which she and Anolick Family Trust may have in the Husband's corporate entities;
8.1.2The Wife and Anolick Family Trust will have no further claim against the Husband's corporate entities and/or the Husband in relation to the Husband's corporate entities and any entitlement the Wife and Anolick Family Trust may have in the Husband's corporate entities vests in the Husband; and
8.1.3The Husband indemnifies the Wife and Anolick Family Trust in relation to any and all liabilities of the Husband's corporate entities, including but not limited to any current or future income tax liabilities and/or any debit loan account which the Wife may have in the Husband's corporate entities.
8.2In relation to the Husband's trusts:
8.2.1The Wife assigns to the Husband any credit loan account which she and Anolick Family Trust may have in the Husband's trusts;
8.2.2The Wife and Anolick Family Trust will have no further claim against the Husband's trusts and/or against the Husband in relation to the Husband's trusts and any entitlement the Wife and Anolick Family Trust may have in the Husband's trusts vests in the Husband; and
8.2.3The Husband indemnifies the Wife and Anolick Family Trust in relation to any and all liabilities of the Husband's trusts, including but not limited to any current or future income tax liabilities and/or any debit loan account which the Wife and Anolick Family Trust may have in the Husband's trusts.
8.3In relation to ZZ Pty Ltd and Anolick Family Trust (save as provided in paragraphs 3 and 4):
8.3.1The Husband do all acts and things and sign all documents necessary to resign as a director and secretary of ZZ Pty Ltd and transfer his shareholdings in ZZ Pty Ltd to the Wife and/or the Wife's nominee;
8.3.2The Husband do all acts and things and sign all documents necessary to resign as an appointor of the Anolick Family Trust;
8.3.3The Husband assigns to the Wife any credit loan account which he and his corporate entities and trusts may have in ZZ Pty Ltd and Anolick Family Trust;
8.3.4The Husband and his corporate entities and trusts will have no further claim against ZZ Pty Ltd, Anolick Family Trust and/or the Wife in relation to this entity and trust and any entitlement the Husband and his corporate entities and trusts may have in this entity and trust vests in the Wife; and
8.3.5The Wife indemnifies the Husband and his corporate entities and trusts in relation to any and all liabilities of the Husband arising from ZZ Pty Ltd and Anolick Family Trust, including but not limited to any current or future income tax liabilities and/or any debit loan account which the Husband and his corporate entities and trusts may have in this entity and trust.
8.4In relation to AH Pty Ltd:
8.4.1The Husband assigns to the Wife any credit loan account which he may have in AH Pty Ltd;
8.4.2The Husband and his corporate entities and trusts will have no further claim against AH Pty Ltd and/or the Wife in relation to AH Pty Ltd and any entitlement the Husband and his corporate entities and trusts may have in AH Pty Ltd vests in the Wife; and
8.4.3The Wife indemnifies the Husband and his corporate entities and trusts in relation to any liabilities arising from AH Pty Ltd, including but not limited to any current or future income tax liabilities and/or any debit loan account which the Husband and his corporate entities and trusts may have in AH Pty Ltd.
That pending the discharge of the mortgage secured over E Street:
9.1The Husband is responsible for any shall indemnify the Wife against all loan repayments pursuant to the mortgage;
9.2The Husband and Wife are restrained from further encumbering E Street or increasing the loan associated with the mortgage secured over this property; and
9.3The Wife is responsible for all rates, taxes and outgoings of whatsoever nature and kind in relation to E Street.
That the Husband retain for his sole use and benefit all of his right title and interest in:
10.1The Husband's corporate entities;
10.2The Husband's trusts;
10.3Bank accounts in the Husband's name;
10.4The Husband's shareholding in AK Ltd; and
10.5The Husband's superannuation interests in Super Fund 1.
That the Husband indemnifies the Wife and is solely responsible for all credit cards in the Husband's name.
That the Wife retain for her sole use and benefit all of her right title and interest in:
12.1The Wife's real properties;
12.2AH Pty Ltd;
12.3ZZ Pty Ltd and Anolick Family Trust;
12.4All bank accounts the Wife's name;
12.5The Wife's jewellery; and
12.6The Wife's superannuation interests.
That the Wife indemnifies the Husband and is solely responsible for:
13.1All loans in her name and/or all loans secured over the Wife's real properties (save as provided in paragraph 5); and
13.2All credit cards in the Wife's name.
That forthwith the parties do all acts and things and sign all documents necessary to cause all caveats lodged on their respective behalves over any real properties registered in the names of the parties personally, ZZ Pty Ltd, the Husband's corporate entities or the Husband's trusts, to be withdrawn at their own expense.
That forthwith the Husband in his own capacity and/or his capacity as director of D Pty Ltd, do all acts and things and sign all documents to forthwith transfer to the Wife, free of any debt and liability, all right title and interest in the Motor Vehicle 1 registration number …, with the costs of the transfer to be paid for by the Wife in the first instance and the Husband to reimburse to the Wife 63 percent of the cost of obtaining the road worthy certificate for the vehicle and 63 percent of the cost of any stamp duty assessed as arising from the transfer, within 7 days of the Wife providing documentary evidence to the Husband's solicitors of those costs being incurred.
That forthwith upon the parties' compliance with orders 3 and 4 herein, the Husband provide to the Wife and/or the Wife’s nominee all the books and records of ZZ Pty Ltd and Anolick Family Trust including company registers and documents and the Anolick Family Trust Deed and documents.
That save as otherwise provided in these Orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent Orders:
17.1Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
17.2Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
17.3All insurance policies remain the sole property of the owner named thereunder;
17.4Each party be solely liable for and indemnify the other against any liability encumbering any assets to which that party is entitled pursuant to these Orders; and
17.5Any joint tenancy in any real or personal property be otherwise expressly severed.
Pursuant to r 17.02A of the Family Law Rules 2004 (Cth), the Reasons for Judgment have been amended.

IT IS DIRECTED:

That the reasons for decision handed down on 30 October 2020 be marked Exhibit “C3” and remain on the Court file.
That the amended reasons for decision dated 10 November 2020 be marked Exhibit “C4” and remain on the Court file.
That the further amended reasons for decision dated 11 November 2020 be marked Exhibit “C5” and remain on the Court file.
That the document of the proposed final orders which the parties agreed reflect the reasons for judgment in this matter be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5060 of 2012

Mr Anolick

Applicant

And

Ms Anolick

Respondent

REVISED REASONS FOR JUDGMENT

Amended pursuant to r 17.02A of the Family Law Rules 2004 (Cth) on 20 November 2020.

Introduction

These are proceedings between the husband and the wife to alter property interests following the breakdown of their relationship of 14 or so years. The proceedings ran for 5 days between 4 and 25 September 2019. I apologise to the parties that this decision has taken so long to deliver. Through their practitioners, the parties have had extensive notice of the determination of the matter but there has been no application to re-open the case as a consequence of my delay or otherwise.
The parties married in 2002 and their divorce took effect in September 2018. For ease of reference I will refer to the parties as the husband and the wife. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) confers a broad power on the Court to make a property settlement order. The power is exercised by making findings of fact and discretionary assessments about what contributions have been made by or for each party, adjustive factors and the overall appropriateness of the decision to alter the parties’ interests in property. It is power to be exercised judicially and guided by principles set out in the legislation. These reasons identify my factual findings and the matters which inform the exercise of my discretion.
In broad terms, I have divided the parties’ interests in property in the proportions of 63 per cent to the husband and 37 per cent to the wife. It is a result which is much closer to the alteration of property interests sought by the husband than it is to the various determinations contended for on behalf of the wife.

Family members

The husband is 55 years of age and works as a business proprietor. He owns and operates a series of businesses involved in the transport industry.
The wife is nearly 40 years old and is not employed outside the home.
The parties have two children: O aged 17 and P aged 16 (“the children”). The Court made final parenting orders by consent of the parties on 29 January 2018 and provide that:-
a)The husband and wife have equal shared parental responsibility for the children;
b)The children spend time with each parent from 3.30pm or the conclusion of school Friday until 3.30pm or the commencement of school the following Friday, each alternate week;
c)The children spend half of all school holiday periods, including long summer school holiday periods with each parent; and
d)The children spend special occasions with each parent.

Relevant History

The parents began cohabitation in late 2000 or early 2001. They married in 2002 and separated under one roof in June 2014 before physically separating in August or September 2015.
At the commencement of the relationship, the husband owned and operated the business D Pty Ltd (“the business”). The husband provides a detailed history from page 32 of his affidavit sworn 13 August 2019. The husband entered into partnership with a colleague, Mr AR to provide stock to the business in Suburb S that he was employed at by arrangement with the owner of the business. The husband then moved to work at another business in around 1989 called AV Company located at AW Street, Suburb AX. Shortly after this, the husband and Mr AR began the partnership trading as D Pty Ltd at the Suburb AX site (“the partnership”). The husband was the salesman and Mr AR as the tradesperson. The husband was 24 years old.
By 1991, the partnership was trading across four businesses located at three addresses and had employed two further salesmen. The partnership dissolved in 1992 and the husband retained half of the stock and the trading name of D Business. The business, D Business, operated from one of the previous businesses being AZ Street, Suburb S (“the AZ Street property”). Mr AR took over the Suburb AX site and the husband and Mr AR sold the other property.
From the early 1990’s, the husband became involved in sporting events as a source of advertising. The husband won several races. There was no suggestion that the husband did not enjoy these events but there was a strategic element to immersing himself, and gaining recognition, in the industry. The husband also invested in other advertising. At the time the parties began living together, the business sold stock from three properties and held four storage properties.
On 15 August 2002, KK Pty Ltd purchased R Street, Suburb S (“the R Street property”) with a view to moving every aspect of the business to one key site. Prior to the business moving to R Street, the husband commissioned BA Company to produce a 48 minute documentary which was filmed in 2002, being within a month of the parties’ marriage. The husband was 37 years old and the wife was 21. Part of the documentary was played on the first day of the hearing. The documentary shows 48 staff introduce themselves and explain their roles, footage of the site at the AZ Street property and the various uses of the site as well as footage of the new R Street site being fitted out. My impression was that it was an established and thriving business. The workforce presented as genial and relaxed. The husband put his staff, rather than himself, to the forefront of the presentation. The husband’s affidavit evidence and the video give every indication that the husband ran a tight ship for which the outward appearance was one of amiable, knowledgeable staff selling good value stock from a no-frills premises.

In 2003, the parties purchased in joint names the property at J Street, Suburb K (“the J Street property”) for approximately $606,000. This property was the first matrimonial home and the husband’s first residential investment because, hitherto, he had put all of his resources into his business.
In October 2005, the wife purchased BC Street, Suburb H (“the BC Street property”) for $270,000 using savings acquired prior to the relationship to fund the deposit.
On 10 May 2006, the wife became the sole proprietor of the J Street property. Moving forward, the property is tenanted and, as at February 2018, generated gross rental income of $47,448 which was retained by the wife.
In 2007, the wife sold the BC Street property for $420,000 and used the funds to purchase further properties.
In about 2008, the wife began renting out the J Street property and applied the rent to the mortgage. Moving forward, and as at February 2018, the J Street property generated gross rental income of $47,448 which was retained by the wife. The property however, has been untenanted since 26 August 2019.
In late 2008, the parties purchased E Street, Suburb F (“the E Street property”) for $2.8 million. It was registered in the sole name of the wife. The parties moved into this property and lived there until separation. The wife proposes to remain living there. The property is encumbered by mortgage to CBA with $1,600,250 outstanding and the husband has continued to pay the interest on the loan in the sum of $2,382 per week.
After purchasing the E Street property, it became evident that there were significant building defects. The dwelling was constructed by BD Pty Ltd trading as BF Company and the plumber was engaged by BF Company. There were water leaks as well as structural issues with the brickwork and roof. The wife engaged experts to assess and report on the defects. Rectification notices were issued through the Department of Consumer Affairs Victoria. The builder and plumber contested the rectification works and costs. The wife retained BG Lawyers to act on her behalf and issued proceedings in VCAT in 2013. Quantity Surveyors prepared a detailed report of the defects in 2013 and assessed the costs of the rectification works at $1,918,877 which is annexed to the wife’s original trial affidavit affirmed 22 February 2018 as “JA-4”. The wife deposes in her 2018 trial affidavit at [60] that the husband would not pay the legal fees for BG Lawyers to pursue the VCAT proceedings. She says that:
He said he would take over the case against the builder and engage BH Lawyers. At his request I collected the file from BG Lawyers and delivered it to BH Lawyers. Mr Anolick said that he would now take over the matter. However, BH Lawyers have not taken any further action or taken legal proceeding to rectify the serious defects to my home.
The wife deposes that she was able to recover $107,255 from the plumber through her efforts and negotiations with the plumber. These funds were paid by the wife into mortgages secured over her investment properties.
The wife’s evidence was that it was the husband’s decision for BH Lawyers to be retained and that the husband therefore intended to take over responsibility for the claim. The wife made statements such as “I was hoping [the husband] would continue the claim”. The wife’s case was that the husband had let the side down by not pursuing compensation from the builder and that allowance must be made for her anticipated expenditure of $1,918,877 to make the home habitable. However, in cross-examination, the wife conceded that she was meeting with BH Lawyers, providing instructions, sending emails, receiving legal advice and organising for structural reports to be conducted. Ultimately, it was conceded by the wife’s counsel that the husband has no right to pursue a claim in relation to the E Street property as he was not on title.
The husband’s evidence was that the wife told him to “stay out of it” and that he was not to get involved in the claim or in instructing BH Lawyers. His evidence was that he only found out about the wife’s receipt of $107,255 in compensation from the plumber in the course of these proceedings. The husband deposes that the wife also received a further $15,667 in or around 22 February 2011, evidenced by documents produced on subpoena. A copy of email communications between the wife and BH Lawyers between 2013 and 2014 are in Exhibit “H3” [pages 813-917] and establishes that the wife prevaricated, omitted to provide instructions to BH Lawyers and eventually allowed the claim to become statute barred.
In late 2009 early 2010, ZZ Pty Ltd ATF Anolick Family Trust (“Anolick Family Trust”) purchased 3 AG Street, Suburb H and 5 AG Street, Suburb H (“the AG Street properties”). The property holds a ground floor retail premises and four residential apartments. The wife converted the original office space, as funded by D Pty Ltd, into the residential apartments. The property has been untenanted since 2018. The wife deposes that there is a lack of demand for rentals and that the rent only just covered the expenses so she made no income from this property.[1] The husband says that the gross rent previously received for the retail space as at January 2018 was $33,594 and the residential apartments was $51,097. It is agreed that the wife will assume control of ZZ Pty Ltd ATF Anolick Family Trust and the AG Street properties as part of the alteration of property interests.
[1] Affidavit of the wife sworn 29 August 2019, [177].
On 2 June 2011, the wife purchased L Street, Suburb K (“the L Street property”) for $885,000. Since 9 July 2018, the wife deposes that the L Street property has been untenanted due to it being considered by the managing real estate agent to be untenantable. A planning permit was obtained by the wife to develop the site. The permit has now lapsed. The wife estimates that the cost of the further repairs are $5,000. The wife says that she had been told by the estate agent that she could expect to rent the property for $480-500 per week. The wife says that the husband has refused to assist with the repair costs.[2] As will become apparent, the wife has had more than enough funds with which repair her investment properties but she has elected not to have them repaired. I conclude that she has voluntarily forgone income.
[2] Affidavit of the wife sworn 29 August 2019, [178].
On 6 June 2012, the husband initiated parenting and property proceedings but the parties subsequently reconciled with notices of discontinuance filed on 3 and 6 August 2012.
On 15 January 2013, KK Pty Ltd purchased 5 BK Street, Suburb S (“the BK Street property”- for $1,017,000. The site is used by the husband’s current and previous business for photography of the stock for marketing purposes.
On 30 October 2013, the wife purchased G Street, Suburb H (“the G Street property”) for $380,000. As at August 2019, the property was tenanted with a gross income of approximately $18,200 per annum.
On 8 November 2013, KK Pty Ltd purchased 7 BK Street, Suburb S (“the 7 BK Street property”) for $1,050,000. The site is used by the husband’s business to operate the cleaning and paint repair aspects of the business before moving to 5 BK Street for photographing.
On 10 November, KK Pty Ltd purchased JJ Street, Suburb S (“the JJ Street property”) for $970,000. The site was refurbished in 2019 as part of the restructure of D Pty Ltd and is currently used for stock maintenance as well as being where approximately half of the customers collect their purchases from.
On 18 March 2014, the wife purchased M Street, Suburb H (“the M Street property”) for $620,000. The wife obtained a planning permit for the property in or around April 2019. The plan has design for three dwellings. The gross rental income for the property was $28,280.
On 4 June 2014, KK Pty Ltd purchased T Street, Suburb U (“the T Street property”).
The parties separated under one roof in June 2014. O was then 11 years old and P was 9 years old
On 4 August 2014, KK Pty Ltd purchased unit BL Street, Suburb S (“the BL Street property”) off the plan for $365,000. The property is a small industrial warehouse that is not actively used.
The parties physically separated in August or September 2015 when the husband left the family home.
On 8 October 2015, KK Pty Ltd purchased BM Street, Suburb F (“the BM Street property”) for $1,125,000. The husband moved into the property following separation and has remained living there.
On 23 December 2015, the husband re-commenced parenting and property proceedings by way of an initiating application.
On 18 January 2018, the matter came before me for mention. The wife made three applications seeking leave to rely on an affidavit of Mr V in relation to the value of the R Street property and the T Street property, spousal maintenance and leave to rely on an affidavit of Mr Y in relation to the valuation of the husband’s business and related entities. I made orders that there be leave to file and serve an affidavit of Mr V; that Mr V and the appointed single expert Mr FF confer and prepare a memorandum in relation to their views of the properties; the husband, by consent, pay the wife $13,500 and continue to pay $13,400 a month in family maintenance; and leave to the wife to withdraw the application in relation to Mr Y.
On 29 January 2018, 5 March 2018 and 6 March 2018, the parties attended mediation. The parenting proceedings were settled by consent on 29 January 2018 on the basis that the parties would have week about care of the children.
On 6 March 2018, the property proceedings were listed for final hearing on 29 October 2018, estimated to take five days. Orders were made permitting the husband to offer for sale both the property and business, being D Pty Ltd operating from the R Street property.
After having the benefit of two reports being prepared, one in relation to the sale of the business by Mr AO of BN Pty Ltd and one in relation to the various options for the sale of the R Street property, the husband decided that it would be in both parties interests for the business to continue trading from the R Street property with the report by Mr AO stating:[3]
It is clear that all potential options available for the sale of the D Business at this time are highly unpalatable. Any sale process undertaken for the D Business is unlikely to realize any significant value for the vendor, and it is highly unlikely that any significant Goodwill value would be realized on a sale of the business.
…
In conclusion, it is our opinion that the D Business is not a saleable proposition as contemplated. We firmly believe that a sale process is unlikely to succeed and that the only realistic option would be an immediate wholesale of inventory, which would realize no goodwill, and would incur inventory losses ranging from 5% to 25%, with a reasonable estimate being 12.5% to 15% overall.
In addition, the business would be required to incur the costs of making all existing staff redundant, which would be a significant expense given the size of the workforce.
[3] Affidavit of the husband sworn 13 August 2019, [45], Report of Mr AO dated 5 June 2018, page 35.
On this basis, the husband consolidated D Business and Z Business to one primary site at the R Street property at the end of the 2018 financial year. The husband’s expressed view was that consolidation would allow him to operate the business more efficiently and give greater flexibility to structure a payment to the wife as part of the alteration of their property interests. The husband, through their respective solicitors, communicated with the wife about this entire process, including providing the reports and any related correspondence. The wife did not raise any objection to the decision of the husband.
As mentioned earlier, the parties were divorced with effect from late 2018. The husband repartnered in 2017 but did not refer to his partner in affidavit evidence until his affidavit sworn 30 August 2019 being some two years after their relationship commenced. At [27-28] of that affidavit the husband details that his partner is Ms AL and that he holds a shared bank account with her that he had overlooked disclosing in previous affidavit material. Ms AL is employed at GG Business and receives a salary of $48,000 per annum. She lives in a separate rental property and has children of her own from a previous relationship. She stays at the husband’s home if she is not caring for her children and the husband’s children are not in his care. He deposes that he helps her with “modest expenses from time to time”. It appears from his evidence in cross examination that she began working at GG Business before they formed a relationship. She works Monday to Friday during school hours and the husband conceded that her salary is not reflective of the hours she works and that she is likely to be paid in excess of $15,000 based on the hours actually worked. Ms AL also has the benefit of a Motor Vehicle 2 which was purchased by the business in June 2019 for her sole and personal use. The business pays for all running costs associated with the vehicle. The Motor Vehicle 2 has an agreed value of $65,000.
On 3 September 2018, I made orders readying the matter for trial and made a notation that the husband and wife negotiated a partial property settlement in the total sum of $300,000 to be paid to the wife over a series of instalments, with $200,000 already having been paid to the wife.
On 14 September 2018, which was about six weeks before the scheduled final hearing, the husband informed the wife via their respective solicitors and the Court that he no longer sought to retain D Business of R Street. Instead, the husband was committed to relocating and restructuring the business, operating from T Street. The husband deposes at [58] of his affidavit sworn 13 August 2019, that “the main reason was that I did not see that there was any way to settle the case with Ms Anolick unless I sold R Street”. The husband made application on 24 September 2018 for the final hearing to be adjourned for the relocation and restructure to take place. I made orders adjourning the trial to 17 June 2019.
On 21 November 2018, I made orders setting out the husband’s obligations in relation to the business restructure and provision of information to the wife. I also made orders for the wife to be paid a further $100,000 from the husband by way of a part property settlement.
On 17 December 2018, the R Street property was sold for $15,050,000 which was paid by way of $505,000 deposit: $1,000,000 on 1 March 2019; and $13,545,000 on 29 January 2019.
As detailed in the husband’s affidavit at page 14, on 11 December 2018 the husband sent the wife via their respective solicitors a letter setting out the various first and second round offers received, including the offer of the eventual purchases which was stated to be “on a knifes edge”. On 12 December 2018, the wife’s solicitors wrote to the husband’s solicitors stating that to “achieve the maximum value” for the property the wife, after further investigations, says that the property should be subdivided “to achieve an optimal value in excess of the amounts extracted during the current “existing use” EOI campaign”.
On 25 February 2019, I heard the wife’s application filed 22 February 2019 seeking to adjourn the hearing for six to twelve months following the completion of the refurbishment of the T Street property and the relocation of the business. The gist of that application was that it would take the husband sometime after relocation to get his new business into shape. I did not grant the orders sought by the wife. The trial was relisted for 4 September 2019 for three days and then a further five days, two weeks later.
In March 2019, GG Business commenced business at the T Street property after renovation and fit outs were completed.
On 12 June 2019, I made orders with directions for the trial and for a further partial property payment to be made to the wife of $250,000 and that the wife set out in her trial affidavit how she has applied the interim property payments now totalling $650,000.
On 4 September 2019, being the first day of the final hearing, the wife’s counsel made an oral application for leave to rely on another expert witness’ evidence as opposed to the single expert witness appointed to value the T Street property. I made an Order that the wife file and serve an application and supporting material pursuant to r 15.49 of the Family Law Rules 2004 (Cth) (“the Rules”). On 11 September 2020, prior to the hearing recommencing, and as per the Order made 4 September 2019, the wife filed such an application along with an affidavit of Mr V sworn or affirmed 2 September 2019 annexing his valuation report dated 23 August 2019 of the T Street property. Mr FF had been otherwise appointed as the single expert to value the T Street property and produced a report dated 16 August 2019. The application by the wife sought leave to adduce the evidence of Mr V and to rely on his evidence instead of Mr FF’s and that the husband pay the wife’s costs of the application. Mr V values the property as $9.85 million as compared with Mr FF who values the property as $7.43 million, being a difference of in excess of $2.4 million. On 12 September 2020, I made an Order giving permission for the wife to rely on Mr V’s affidavit. Late in these reasons I consider the evidence of the two valuers and conclude that the evidence of Mr FF is to be accepted over the evidence of Mr V.
Completion of Ms AA’s business valuation report was delayed. It was published on the first day of the hearing.
On 19 September 2019, being four days before the final hearing was to recommence, the husband filed an application in a case seeking leave under r 15.49 of the Rules to adduce evidence from Mr AO, in relation to the valuation methodology adopted in the valuation report of Ms AA dated 4 September 2019 with specific reference to “business goodwill”. Leave was granted on 23 September 2019 for the husband to rely on Mr AO’s affidavit.
Later in these reasons I consider the evidence of Ms AA and the limited evidence of Mr AO, which touched on only part of the matters upon which Ms AA reported, namely, goodwill and the value of the husband’s services to the business. Ultimately, Ms AA made concessions based on new facts that emerged through Mr AO’s evidence and I accept her revised opinion.

Evidence relied upon

The husband relied on:-
a)an outline of case filed 2 September 2019;
b)an affidavit of the husband sworn and filed 13 August 2019;
c)a responding affidavit of the husband sworn and filed on 30 August 2019;
d)an affidavit of the husband sworn 2 March 2018 as itemised in Exhibit “H2”;
e)a Financial Statement of the husband sworn and filed 13 August 2019; and
f)an affidavit of the husband sworn 4 September 2019 annexing a detailed breakdown of the husband’s weekly expenditure (Part N) contained in his Financial Statement, with leave granted to file the affidavit in Court, and same was sealed, on 4 September 2019.
The wife relied on:-
a)an outline of case filed 30 August 2019;
b)a trial affidavit of the wife affirmed 22 February 2018 and filed 23 February 2018;
c)an updating trial affidavit of the wife affirmed and filed 29 August 2019;
d)a Financial Statement of the wife affirmed but undated and filed 30 August 2019;
e)an affidavit of the wife affirmed 4 September 2019 annexing a detailed breakdown of the wife’s weekly expenditure (Part N) of the wife’s Financial Statement, with leave granted to file the affidavit in Court, and same was sealed, on 4 September 2020; and
f)an affidavit of Mr BE, Accounts Manager at Rickards Legal, sworn 25 September 2019 (the affidavit deals with the wife’s solicitors’ inability to provide a complete account of the wife’s legal costs on the first day).

The wife sought to rely on her affidavit affirmed 20 September 2019 which deals with a range of issues such as the husband’s alleged nondisclosure and Mr AY’s report. On 23 September 2019, leave was not granted for her to rely on this affidavit.
The parties jointly relied on the following single expert witness reports:-
a)an affidavit of Ms AA sworn 4 September 2019;
b)an affidavit of Mr AM sworn 5 September 2019, annexing a report dated 29 August 2019 valuing the four motor vehicles owned by D Business as trustee for the Anolick Trust;
c)an affidavit of Mr AM sworn and filed on 29 August 2019;
d)an affidavit of Mr AY sworn and filed on 30 August 2019; and
The husband’s expert witness reports are contained in the following affidavits:
a)an affidavit of Mr AO sworn 19 September 2019, annexing his report dated 5 June 2018 with such report addressing the sale of the business component of D Business, and leave was sought and granted to rely on Mr AO’s affidavit on 23 September 2019;
b)an affidavit of Mr FF affirmed and filed 29 August 2019.
wife’s expert witness reports are contained in the following affidavits:-
a)an affidavit of Mr V affirmed and filed 23 February 2018;
b)an affidavit of Mr V affirmed 2 September 2019 and filed 3 September 2019.
The wife sought to rely on the affidavit of Mr AP, Accountant, affirmed 20 September 2019 which dealt with the accuracy of the husband’s accounts. On 23 September 2019, leave was not granted to rely on this affidavit. The wife also sought to rely on the affidavit of Ms AQ, Business Analyst, affirmed 23 September 2019 which dealt with analysis on behalf of Mr AP of the husband’s sales for the 2018/2019 financial year. On 23 September 2019, leave was not granted to rely on this affidavit.

Parties applications & ambit of the dispute

In terms of the property dispute, the husband sought and maintained a split in his favour of 65%. He seeks that he retain his corporate entities, trusts, bank accounts in his name, shareholding in AK Ltd and superannuation interests in Super Fund 1. The wife would retain 35%, made up of a cash payment/s to the wife by the husband from the proceeds of sale of the real properties nominated by the husband, the wife’s real properties, AH Pty Ltd, ZZ Pty Ltd, the Anolick Family Trust, all bank accounts in her name, her jewellery, and her superannuation.
The husband submitted that the wife, on his case, is entitled to about $10,750,000 million, inclusive of cash payment between $3,400,000 and $3,500,000. He says this cash payment should be payable after the receipt of sale proceeds from the R Street property as his prospects of borrowing that money are not great due to the sale he undertook in order to achieve settlement of the property to the wife.
The wife agreed to the form of the husband’s minute of orders. Senior Counsel for the wife submitted that the evidence justified a payment made to the wife be to meet a division of 50% in her favour (rather than the 35%, for which the husband contends). The wife opposes the immediate cessation of her maintenance payments.
The wife originally sought a split in her favour of 85% of the assets. At various times throughout the pre-trial stage of the proceedings, I queried how the 85% could be justified. Reference was variously made to wastage and non-disclosure. On numerous occasions, and always when acceding to a request that I make orders for partial property settlements to fund legal fees, I commented that the wife must bear in mind that she was spending her own capital on this case. The wife did not resile from 85% and the die was cast well prior to Mr Coleman SC coming into the case. In final submissions, Mr Coleman SC submitted that, in the absence of express instructions from his client to resile from that position, but in his obligation to the Court to advance a case which, in light of the evidence, falls within the ambit of the Court’s likely determination, a position of seeking 85% was not reasonably within the ambit of the Court’s likely determination. He submitted that an alteration of property, whereby the wife receives a 50% share of the assets, is justified.
The wife seeks, which is agreed, that she retain the AG Street properties via the Anolick Family Trust and the E Street property which is free from encumbrance. The wife moved away from seeking the T Street property be sold, to the extent that there would be a sum available to satisfy an appropriate payment to the wife from the sale proceeds of the R Street property.
The major controversies were in relation to valuations of property, namely:
a)Whether I accept the valuations of the T Street property and the JJ Street property of Mr FF, or the wife’s expert, Mr V? On 21 November 2016 Senior Registrar FitzGibbon ordered that the real properties be valued by a single expert witness. Mr FF was appointed as the single expert witness. Upon the wife obtaining leave to rely on Mr V as an adversarial expert, on 4 September 2019, the husband relied on Mr FF;
b)If I accept the evidence of Mr V then in respect of the T Street property, there is a $2,420,000 difference in the valuations and in respect of the JJ Street property there is a $265,000 difference that needs to be added to the values of the properties as part of the divisible assets;
c)As submitted on behalf of the wife, if I were to accept the evidence of Mr FF over Mr V, that I should add $1,120,000 to the divisible assets, being the figure nominated in the joint memorandum[4] using the capitalisation approach. This is due to the concession made by Mr FF that in view of him only considering that 3,272 square metres of the T Street property was used in some manner or other in connection with the business, as opposed to the full land area of the site being 5,193 square metres, that there was a significant defect in his valuations;
d)Whether I should accept the expert evidence of Mr AY in his valuations of the stock held by the husband’s business; and
e)Whether I should accept the original valuation of Ms AA in relation to the business or whether I should accept her revised valuations after considering further evidence and the report of Mr AO.
[4] Exhibit “C1”.

Burden of Proof

Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
In these reasons, a statement of fact is a finding of fact.

Credit and impression of the parties

This is not a case which automatically called for findings of credit. However, the wife was critical of the husband as a witness and the wife was revealed as giving dishonest evidence in a number of respects about matters of significance.
In summary, I found the husband to be truthful. On the other hand, I found the wife to be careless as to factual matters, prepared to give evidence dishonestly when she perceived that it was in her interests to do so and lacking in contrition when her untruthfulness was exposed.

The Husband

The husband was a considered witness whose responses were delivered calmly and in a considered way.
The cross-examination of the husband by Mr Coleman SC was thorough and uncovered anomalies which the husband could not explain other than to say that they may to be erroneous. For instance, the entry of $2.4 million in the depreciation schedule[5] for improvements to his residence at the BM Street property and the incorrect description of the property as being at 6 BM Street. The accurately described property at BM Street was acquired for $1.25 million and had an agreed value at the time of the trial of $1.55 million, per the single expert witness, Mr FF. It was contended on behalf of the wife that the $2.4 million referred to in the depreciation schedule as attributable to that property should be taken into account in the post-separation context as funds of which the husband has had the benefit of in some way and in respect of which he failed to adduce any evidence. Under cross-examination, the husband responded that the reference to 6 BM Street must be simply an error; it is plainly a wrong entry because it is not a property that he owned nor which any of his entities had ever owned. The husband did not accept that $2.4 million was spent on the BM Street property. He was otherwise unable to illuminate the position as to what that entry in the depreciation schedule might be. The husband did not seek any allowance in relation to an overestimation of deductable expenses on the property. However, neither did the wife demonstrate, given the husband’s response, that the $2.4 million ever existed. The husband’s evidence was not careless or, in my assessment, dishonest. The husband was unmarred. I am not satisfied that there should be any allowance made against the husband in relation to the $2.4 million mentioned.
[5] Exhibit “W4”.
Similarly the husband was criticised by the wife for not calling Ms BP, the in-house accountant for the husband’s entities, and his external accountant from AC Accountants Pty Ltd. The husband in the witness box consistently stated that there were some financial details of the business with which he was not familiar but in respect of which Ms BP and AC Accountants would have details. The following extract is emblematic of the manner of the husband’s response:[6]
[6] Transcript in confidence, 4 September 2019, p. 88-90, 5-6
Now that’s what you are representing or intending to represent to 5 the Commissioner for Taxation is your taxable income for that year, isn’t it?---But I believe there’s also the wrap up of the actual sale that has been incorporated within that, too. So I’m not sure whether that’s the true reflection of the actual business.
Well, that was the question I put to you about five minutes ago. As I said to you, that figure must include the taxable capital gain from the sale of R Street, which came to you as a trust distribution?---Okay.
Do you agree with that?---I can’t comment. I - - -
Can’t comment?---I’m not sure. I’m not sure how the trust distributes. I’m sorry.
Well, what reliance can her Honour have on this document in view of your last answer? What’s her Honour to make of it?---I sit down with my accountants which I’ve used for more than 20 years. They go through and explain everything to me. I trust that they’re doing the right thing by me. They explain it to me at the time. I understand it. And they run me through and that’s how I work together with my accountants.
Well, of course, your accountants aren’t giving evidence, are they? No affidavit from your accountant?---I’m not aware of one.
No. So I can’t ask your accountant any of this, can I?---At this stage, no.
Well, no is the answer. This is the stage?---Okay.
Well, are you telling her Honour that, if that’s accurate, that’s good? If it’s not, then you accept no responsibility for any inaccuracy. Is that the effect of what you’ve been saying?---No. I say that my accountant explains it to me. He goes through every document with me, explains it to me. I can’t say that I remember the exact particulars of each one.
And that’s your answer on that question? You don’t want to say any more?---That is my answer.
Thank you. Now this – have you lodged a return for 30 June 19? I imagine the answer is no, you haven’t? You wouldn’t have been obliged to, yet, would you?---I’m not aware, sorry.
No. Well, what I want to suggest is your expectation would be that, consistent with your accountant’s lodgement obligations, you are likely to lodge this in March or May of next year. Do you agree with that?---I’m not sure.
How many years have you been lodging tax returns now?---Probably more than 20.
20. And each year you would lodge four or five with the various entities, wouldn’t you?---Each year, my accountant looks after my affairs.
I’m sorry, my question was each year you would lodge four or five for the various entities, wouldn’t you?---If that is correct. I can’t say that I count them. But that’s – I rely on other people to – that I’ve had with me over the years that I trust. And I’ve got an internal account network and I’ve got an external accountant. So I rely on them to arrange these affairs for me.
None of these people are giving evidence, are they?---I’m not aware they are.
No internal, external or any other accountants of yours are giving evidence?---Not that I’m aware of, no.
See, I want to suggest that you well know from lodging tax returns – multiple tax returns over 20 years that you’re likely to have to lodge this return first quarter or early second quarter of next calendar year. Do you agree with that proposition?---I would have to check with my accountant. I’m not sure.
Okay. All right. I suspect I know the answer to the next question but I have to ask it. You would expect to pay your assessment in about May of next year, wouldn’t you?---I can’t – I’m not sure when it’s due.
Not sure. Look, you’ve paid a lot of tax over a lot of years, haven’t you – hopefully?---Yes.
When do you normally pay?---My accountants basically organise everything for me.
Okay?---I sign off when I need to and they pay my tax accordingly.
So you have no idea when you normally pay your tax?---Well, they basically organise – I’ve got external and internal accountants.
Yes?---And they’ve been looking after my affairs for more than 20 years.
20 years. And you trust them. Yes, we understand that?---And I - - -
But – I’m sorry, I spoke over you. I apologise?---That’s okay.
No. I don’t know that you had finished. Have you?---It’s okay. I’m finished.
All right. Well, see, the sum total of all that is you have no idea when you pay your tax each year. That a fair summary of your last - - -?---No.
- - - few answers?---They tell me then I ask him when my tax – I know when my tax is paid because I will – they will tell me that – or I will ask them if that’s for this year – for what period it’s actually for. I don’t record it. I – as such. I – when I discuss it with them – it’s in my – I classify it as that’s our ongoing proposition. And also, with tax, we pay it in advance. So, some of the cases I can’t say that I’m right up to date with exactly what – I know I’m not behind.
The husband did not shirk responsibility for the financial details provided for his business. On behalf of the wife, it was submitted that the husband was able to identify persons who could give relevant evidence about the matter and answer questions that he could not answer, and yet he failed to call them. It was further submitted that as the husband was the first witness called, there was ample opportunity thereafter, during the remainder of the hearing to reconsider whether he wished to seek leave to call witnesses. It was contended that a Jones v Dunkel[7] inference is available to me. That is, that the evidence of certain other people, being his internal and external accountants, would not have assisted his case. I do not find the husband’s evidence to be impugned. The wife’s case did not go so far as to posit what conclusion I should draw from the husband’s evidence not being accurate. Had she done so, a Jones v Dunkel inference may have been open.
[7] (1959) 101 CLR 298.
Similarly, in the first session of the husband giving evidence, he conceded that about $4.2 million of income from other sources may not be included in the $81 million reported gross income for D Business but gave no further explanation. It was, however, unclear whether the husband’s evidence was that the $4.2 million was not included on the document that he was looking at when he gave that evidence or if it was not actually recorded in the gross income. The transcript indicates that the husband was looking at page 11 of the D Business Profit and Loss report, being Exhibit “W6”. The turnover is listed as $81,203,006 for the stock sales and then the husband was asked whether that figure includes the figure of $4,214,901 and his response was “I don’t believe it does”. The husband was asked to look at a page with a series of figures on it, none of which included $4,214,901. The husband’s counsel objected as the husband’s evidence was that he needed the other ten previous pages to be able to accurately identify if the $4,214,901 was included. Whilst the wife might say that the husband did not call any evidence to further explain the husband’s evidence, it is not incumbent on the husband to explain a document put to him by the wife. The accounts shown were not identified as being external or internal accounts. Whilst the husband accepted that it was a record of his business, he was only asked whether he had seen the document before, and his response was that he had not seen such a document in the format presented.
Further, the wife submitted that the husband failed to disclose that his motor vehicles and the Motor Vehicle 2 driven by his partner, Ms AL, had not been valued when he, in his affidavit material, had previously made comments regarding the wife’s failure to have her car valued. The wife says that it was not until the joint bank account of the husband and his partner was subpoenaed that the husband decided to mention that he had re-partnered in his 30 August 2019 affidavit after they had been in a relationship for two years. Whilst they do not live together, his partner has the benefit of a Motor Vehicle 2 leased through the business and is paid $48,000 to work limited hours during school hours. The wife submits that these benefits should have been included in the husband’s financial statement as benefits paid for others, which he did not do. However, Ms AL is not a member of the husband’s household. The wife also submits that the husband’s partner is overpaid for the limited hours she works. The husband conceded that he was overpaying his partner. The husband should have ensured that all relevant vehicles were included in the valuation process, including his partner’s car. In all the circumstances of the case, I am inclined to conclude that it was carelessness rather than dishonesty on the part of the husband.
I accept the submission of counsel for the husband that the issues identified by senior counsel for the wife do not go so far as to be a real challenge to the husband’s evidence and that his evidence should be preferred over the wife’s who consistently, and without second thought, fabricated and lied in her evidence under cross-examination.

The Wife

In somewhat of an understatement, senior counsel for the wife acknowledged that the wife was not an impressive witness. I find that the wife was a poor witness, prone to overreach and not constrained by the truth. However, Mr Coleman SC submitted, correctly in my view, that the wife’s lack of credibility does not detract from her actual contributions and the relevant adjustive factors under s 75(2) of the Act.[8]
[8] Transcript in Confidence, 25 September 2019, p. 31, 5-12.
The wife’s case in relation to rectification of the building defects to the former matrimonial home indicates a lack of bona fides on her part.
The wife failed to disclose $265,000 worth of jewellery and $40,000 in cash.
It is unknown how the wife funded jewellery purchases between separation and the trial. Mr Dickson QC submitted that the funds could not have come from:
a)the $730,000 that the wife drew from the mortgage on the matrimonial home at the E Street property;
b)the $670,000 from part-property settlement; and
c)the $137,000 she withdrew from the ZZ Pty Ltd account;
which in total equals the sum of $1,542,000 because most of those funds have gone to her legal fees, which are $1,239,743[9] with not enough left over to fund the purchase of jewellery totalling $265,000. The wife cannot claim that she used her maintenance payments to fund the purchases because her affidavit evidence for trial was that she needs approximately $4,500 a week for household expenses. Counsel for the husband called for bank statements of accounts from receipts of jewellery but none were produced.
[9]“W1” being the wife’s costs notification as of 3 September 2019.

The wife was directed to page 8 of her Financial Statement filed on 5 December 2016 where she had deposed to holding $40,000 in cash. The wife said she could not recall that far back about how much cash she held. The wife stated that the cash amount had been entered by her accountant so she would have to check with her accountant but that she did not recall having any cash in 2016. The wife was asked further questions about the figures she had entered in the statement such as $151 a week on food for the children which had now changed to $620 in her financial statement sworn or affirmed on 30 August 2019 and that her expenses in total had moved from $3,384 in the 2016 statement to $6,600 in the 2019 statement. Her response was that her expenses had gone up because the food bill had increased as the children prefer to eat out when they are in her care and when she had been injured with her leg she was unable to cook for herself and the children so relied on takeaway food.
On 23 September 2019, being the third day of the hearing, Mr Dickson QC made an oral application on behalf of the husband with reference to Exhibit “H3” being the husband’s Court Book, page 834 which was tendered in relation to the BF Company building dispute. On that page is an email from the wife to Mr BQ regarding the installation of a safe in the master bedroom of the E Street property at which the wife resides. Mr Dickson QC wished to pursue a link between the safe and his questioning of the wife about the $40,000 in cash she listed in her 2016 Financial Statement. The matter was stood down for Mr Coleman SC to seek instructions. Counsel provided a minute of order by consent for an Anton Piller order on the basis that there was some exclusions to that which would be taken into possession under the order. The matter was again stood down for Mr Dickson QC to arrange an appropriate practitioner to carry out the search, should the order be made. In the event, Dr Smith of Counsel volunteered to be the independent practitioner to supervise Mr Ryan, solicitor for the husband, and Ms Katz, solicitor for the wife, carry out the search should the order be made. The minute sought orders to the effect that the practitioners would attend the wife’s residence at the E Street property for the purpose of taking possession some of the contents of the safe located in the main bedroom of the property, with exceptions as to “jewellery, legal documents and other items of personalty having no or no apparent commercial value, birth certificates, passports and personal papers, credit cards, keys”. Mr Dickson QC sought to take possession of any diaries in the safe, which I ruled as being personal papers, and the practitioners agreed that all items taken into possession that were irrelevant to the proceedings would be returned to the wife upon inspection the following morning. Consequently, the exceptions but for jewellery were not made as part of the Order. All of the safe’s contents, except jewellery, were produced to the Court by Dr Smith the following morning and practitioners for the wife were able to inspect the items first. Dr Smith prepared a report, Exhibit “C2”, which concerned attendance at the property; a list of items in the safe of which the parties took possession; and a list of items not taken possession of, being jewellery related items. All items that the husband’s practitioners considered irrelevant were returned to the wife.
In the afternoon that day, and after finishing his inspection of the safe contents, Mr Dickson QC made an application to recall and re cross-examine the wife in relation to the safe contents. The application was opposed. Mr Dickson QC submitted that the contents revealed some corroboration of the cash figure with a number of cash purchases made around that time, as well as the wife appearing to have further spent and not disclosed, approximately $236,000 on jewellery in addition to the $300,000 already disclosed in 2016 with the most recent purchase being on 9 September 2019 (which was five days after the commencement of this trial on 4 September).
Mr Dickson QC sought to recall the wife, who had not yet closed her case, on the basis of incomplete disclosure. Mr Coleman SC resisted the application on the basis that no further notice to produce was given subsequent to 5 September 2019 when the wife was cross-examined and that there is a fundamental unfairness about the application. The unfairness, Mr Coleman SC submitted, arose because the Anton Piller order was brought without notice (as they usually are) and that the agreed minute, as originally provided, included a series of exceptions that ultimately did not form part of the order. Mr Coleman SC submitted that, having agreed to the order in good faith, it was inappropriate to permit further cross examination about cash and jewellery. Mr Coleman SC submitted that if there is to be any re-opening, such re-opening should be limited to the tender of documents which either are admitted by consent; or are business records, and by virtue, find their way into evidence irrespective of consent, with the origin of them not being in doubt, having originated from the wife’s safe. Mr Coleman SC submitted that the recalling and re cross-examining of the wife is grossly procedurally unfair in the context in which it arose.
I granted leave for the wife to be re-called and re-cross-examined on the basis that, if jewellery items were purchased and such purchases have not been evident from the wife’s discovered bank statements and credit card statements, then those acquisitions may tend to prove the existence of cash. I accepted that the cross-examination of the wife was completed and Mr Dickson QC had not reserved the right to re-open cross-examination (as in fact the wife’s counsel did with respect to cross-examination of the husband). However, parties are cross-examined not only on their material but on their absence of material, and accordingly, cross-examination should be at large. The husband had entered into an agreement with the wife about the value of her jewellery, it was made clear that the husband did not seek to go behind the agreement as to value. The application for the Anton Piller order concentrated on cash, but the husband uncovered other evidence, fortuitously. In the absence of an assertion of privilege (which was not made), it does not behove the wife to say that some of the contents of her safe was under moratorium or quarantine. I refused a request by Mr Coleman SC that the husband put into evidence what the husband asserted was going to be admissible. In my view, the husband should not have been required to show his cross-examination hand.
The wife was recalled and reminded of the questioning about her 2016 financial statement and that she had stated that she held $300,000 worth of jewellery and $40,000 in cash on page 8 of the statement. The wife responded that she did not have any cash in 2016 and that this was a mistake in her Financial Statement. She confirmed three times that she did not have any cash in 2016 and went further to say that she has never kept amounts of $10,000 or more in her safe let alone $40,000. The wife was shown her photo album of jewellery from the safe, Exhibit “H9”, and after looking through the album stated that all of the jewellery in the album was purchased pre-2016. The album was created for insurance purposes. The wife’s evidence was that she had not sold any jewellery since December 2016.
The wife gave evidence that since 2016, she has purchased “a little bit of jewellery and I’ve disclosed all of it in my credit cards”.[10] She deposed that she has only purchased jewellery using her credit card and that every single item of jewellery purchased would appear in her credit card statements all of which statements she had disclosed. She confirmed that she had not purchased any jewellery with cash.
[10] Transcript in Confidence, 24 September 2019, p. 100, 6-7.
Mr Dickson QC presented the wife with a receipt from BR Company (retail jeweller) receipt dated 26 January 2018 for a “18W diamonds = 5.65ct ring for $5,165. The purchase was made using $5,150 cash and $14.50 of card. The wife said that this was the only purchase she made using cash and that she had “completely forgot about” it as she “cannot possibly remember every single purchase”.[11] The wife stated that she obtained the cash from her account and that “as far as [she] can remember, that is the only one [purchase], unless you can point out another one”. She said that she usually does not have any cash unless there is a special deal for a cash purchase. The wife agreed that she would then remember carrying $5,000 in cash and that she probably took it out of one of her accounts but could not say which account.
[11] Transcript in Confidence, 24 September 2019, p. 100, 41-42.
Mr Dickson QC presented the wife with another receipt from BR Company for the purchase on 5 February 2018 of a diamond ring for $6,750. The receipt showed that the $6,750 was paid fully in cash. The wife’s evidence was then that “most”[12] of her jewellery purchases were on her card and that she must have also taken the money out of her account but could not say which account. The wife was asked to overnight identify the account/s from which she withdrew the cash. The wife gave evidence that the money could have been the cash that the husband paid in maintenance. This contradicted the earlier evidence of the wife that had she used all of the maintenance money for household expenses. The wife then stated that the money must have been gifts as it was around Christmas time when these purchases were made and that they could have been lay-by purchases that she was paying off and collecting. The wife said that they were gifts to herself or to her family members. When asked if there was a photo of the ring in the “H9” album, the wife answered “I haven’t photographed it”.[13] This answer shows that the wife did recall the ring that was purchased in February 2018, but maintained that she did not know where she sourced the cash to pay for it. The wife said that the purchases since December 2016 were unphotographed but insured under the home contents insurance. Ultimately it was put to the wife that since December 2016, the wife has purchased approximately $236,000 worth of jewellery. The wife denied this and began laughing whilst maintaining that all purchases were made using her credit cards. Notably the restatement of her earlier evidence that all jewellery had been purchased using credit cards, was incorrect.
[12] Transcript in Confidence, 24 September 2019, p. 102, 34.
[13] Transcript in Confidence, 24 September 2019, p. 104, 47.
Another receipt was put to the wife date 3 January 2017, being a month after the wife had sworn her 2016 financial statement, of a jewellery purchase that was paid in four instalments of $3,000, $10,250 and $500 in cash and $1,000 by eftpos amounting to $14,750. The wife again maintained that she had disclosed all of her financial dealings and bank accounts.
The wife’s counsel conceded that based on the receipts, the summary being exhibit “H12” was accurate. The wife however, gave evidence that there were some entries “that don’t look right.”[14] The wife took issue with items 6 and 8, claiming that she could not recall purchasing these items before conceding that the summary was accurate if it was based on the receipts in her safe.[15]
[14] Transcript in Confidence, 25 September 2019, p. 27, 37.
[15] Transcript in Confidence, 25 September 2019, p. 32, 35-42.
When the wife was asked about her evidence given the previous day that all her jewellery purchases had been disclosed to the husband because all of her bank and credit card statements were disclosed and she only ever purchased jewellery by credit card, the wife’s response in relation to the non-disclosed purchases in “H12” was:[16] “I have completely forgot about those purchases.”
[16] Transcript in Confidence, 25 September 2019, p. 33, 44-45.
The wife’s evidence is that the purchases in the first half of 2017 which amounts to around $50,000 were funded by the $40,000 in cash held by the wife as disclosed in her Financial Statement which is said to be from the cash maintenance payments by the wife that was not spent on maintaining the household. When asked again the wife responded that she had used the money from her tenanted properties to fund the jewellery but that now some of those properties are untenanted. This includes the property at L Street, which the wife describes at paragraph 177 of her affidavit affirmed on 29 August 2019, as requiring repairs before it can be tenanted and in respect of which she paid for some restumping but has not paid to repair the property since 9 July 2018. The wife agreed that if she was to have paid the $9,000 to repair the property, the property would have returned an income of approximately $26,000 per year. The wife says she has not paid to repair the property because she has been unable to afford it.
An ANZ Bank receipt was put to the wife outlining that the wife had deposited $2,000 cash into a bank account that had not been disclosed by the wife. The wife in response stated “all of the bank accounts have been disclosed – all of them”.[17] The wife was asked to locate documentation related to this bank account overnight as well as records for the accounts in which she withdrew the cash to pay for the BR Company purchases in January and February 2018. The wife was also asked about a safety deposit box with the Commonwealth Bank of Australia which had been identified from the wife’s bank statements from her paying associated fees. The key to the safety deposit box was also called for.
[17] Transcript in Confidence, 24 September 2019, p. 116, 12-13.
The wife also accepted that she purchased items online via credit card on platforms like eBay. She could not recall how much she had spent on jewellery on eBay since December 2016 as she had purchased and returned items. The wife however, guessed that she had spent something in the vicinity of $30,000 in total on jewellery since December 2016. Exhibit “H12”, which was compiled by the husband’s counsel, and is a schedule of all of the purchases made by the wife since January 2017, provides a total figure of approximately $236,000.
The next day, being 25 September 2019, the wife was asked to produce the ANZ and other bank documents as well as the safety deposit box key that had been called for. The wife said she could not find the key to the safety deposit box. She said that she has a bunch of keys and could not identify the deposit box key from the ‘bunch’. The wife did not produce the bunch of keys. The wife also said she could not find any documents relating to the bank accounts she withdrew the cash from for the BR Company purchases or the ANZ account.
She gave evidence that the ANZ account was used to pay for repairs to her Suburb H properties and that the ANZ account was not her account but that the receipt was evidence of her depositing money into a tradesperson’s ANZ account. The wife was asked to produce receipts or invoices from the tradesperson but said there was not any. The wife’s further evidence was that depositing $2,000 worth of cash made up of $100 and $50 notes was “a convenient” way to pay the tradesperson as she was “walking past the bank [at 9.00am] and thought it would be convenient for me to deposit that money”[18]. The wife then said that she was not just by chance walking past by the bank with $2,000 cash on her but that she had deliberately gone to the bank that day to pay the invoices. The wife could not say where the $2,000 had come from or from which account but was clear to say that it had not come out of the $40,000 cash she had disclosed on her December 2016 Financial Statement. When asked if the money had come out of the identified ANZ account, being an account the wife held in her name, the wife’s response was that she could not answer the question. She then clarified that she could not answer because she could not remember where the money had come from.
[18] Transcript in Confidence, 25 September 2019, p. 4, 45.
The wife gave evidence that she was very tired the night before when looking for the documents and key that had been called for. She gave evidence that she also had the children with her so had not gone to bed particularly early. The wife was asked if she had any visitors at the home that night. The wife responded that she had no visitors. The wife denied that a man had arrived at the home at about 10.30pm. The wife was asked if she had her phone with her and she responded that she did. Mr Coleman SC wanted it noted on the transcript that the overarching objection to the process remained, but not to the questions asked by Mr Dickson QC noting his acceptance of my previous ruling that as long as the cross-examination had some relevance, I would allow it. Upon returning to the questioning, the wife changed her evidence to say that she remembered that a locksmith had visited her home. The wife says that she called a locksmith as she could not open her locked filing cabinet that she wanted to search to locate the documents that had been called for. The wife says that the cabinet was opened by the locksmith and that upon the locksmith leaving the home, she looked through the contents of the filing cabinet, then washed her hair and went to sleep. Mr Dickson QC asked the wife if she had gone outside later that evening, which she responded that she may have. The wife was asked if she had made a fire, to which she responded that she “maybe did have a little fire”[19] before then changing her evidence to say “No. [She] did not have a little fire”.[20] When asked to clarify the location of the fire, the wife said that she “had a barbecue outside”[21] and began to laugh.
[19] Transcript in Confidence, 25 September 2019, p. 9, 3.
[20] Transcript in Confidence, 25 September 2019, p. 9, 8.
[21] Transcript in Confidence, 25 September 2019, p. 9, 13.
The wife denied that she had a fire to burn documents after the locksmith had come to open her filing cabinet and maintained that she had a barbecue. The wife’s evidence was that after the locksmith left at 9.00pm she had a barbecue to cook lamb cutlets on the grill and that was the only fire that she had outside that night. The wife denied that she had burned any documents that night. The wife’s further evidence was that the children had eaten burgers for their dinner that the wife had bought as a takeaway meal on her way home from Court at 8.00pm and that she cooked lamb cutlets for herself at 9.00pm. The wife then gave evidence that the boys ate dinner at 8.00pm, then she called the locksmith at approximately 9.30pm and that the locksmith arrived straight away, took five or ten minutes to open the cabinet and then left. The wife says she then looked at the documents from the cabinet and then put them back in the cabinet as she could not find the documents that had been called for. She then became hungry so cooked herself a barbecue dinner.
The wife was then shown a photo, being Exhibit “H11”. The photo is said to have been taken that previous night and depicts the wife from the chest down in the same clothes that she had worn to Court the previous day. The photo shows the wife standing next to a pile of something unable to be clearly identified precisely but which appeared to be paper burning in a small fire in a frying pan on pebbles in what has been identified as the backyard or back courtyard of the wife’s home. The wife is depicted standing next to the small fire holding a gas lighter in her hand, with her body angled towards the fire as if watching it burn. It is unclear who took the photo.
The wife agreed that it was a photo of her taken the previous night. The wife was asked where the barbecue was and wife responded that it was close by in the vicinity and that the gas barbecue was next to this fire. The wife denied that she was burning documents and says that she was burning rubbish. At this point, Mr Coleman SC sought a s 128 certificate under the Evidence Act in respect of some answers already given by the wife and further answers given by the wife in relation to the destruction of relevant documents. The matter was stood down for ten minutes for the wife’s counsel to explain to her the purpose and procedure of a s 128 certificate. Upon resuming, the wife gave evidence that rubbish collection in Suburb F is scheduled for Friday morning but that she had burned this rubbish on the Wednesday night. She says that she sometimes burns boxes or branches that do not fit in the bin and that her neighbours also do this. When asked if she agreed that the contents of this fire was small and that this would not send her bins overflowing, the wife responded “I am a very honest person…and all of my documents are very important to me, and I’m not going to burn any documents. This is rubbish.”[22] The wife says that in this instance she was burning magazines and no relevant documents were destroyed.
[22] Transcript in Confidence, 24 September 2019, p.

Ms AA also commented on the more extensive information that Mr AO had available to him from the husband as to the husband’s role in the business, and not from a lack of trying by Ms AA to obtain such information. Ms AA was only provided a small paragraph about the husband being the managing director responsible for directing the people that sourced the stock and for setting sale prices. Mr AO conveyed that some of the husband’s duties could not be delegated to other staff and that the husband actually directs the buyers in that he would decide what stock to bid for, how much the business would pay and sets the price when it comes to the business. Indeed, the husband attends to this task at a micro level dealing with the minutia details rather than from a higher more general managerial role. Ms AA was not aware of the husband’s input to this extent and therefore in terms of a sale versus retention situation, a buyer of the business would much more concerned about the husband staying on or “coming with the business” given the perceived important of his role in the business, being the concept of personal goodwill as opposed to commercial goodwill. Ms AA conceded in her evidence that she had not considered this as a concept.[45] Ms AA added that a prudent due diligence process would involve a prospective purchaser coming to the business and really seeing what it is about, as well as going through the financial information, sales data and similar, and considering the husband’s role would be something “you would absolutely want to make sure that that was part of your purchase process”. [46]
[45] Transcript in Confidence, 24 September 2020, p. 12, 1-3.
[46] Transcript in Confidence, 24 September 2020, p. 13, 1-2.
The final consideration Ms AA considered with Mr AO was Mr AO’s concern about the lack of a database held by the business to follow up previous customers. Ms AA saw it as an opportunity for the business but did not consider it to be a vital concern as she stated that clearly people are coming to the business for more than just a client management system when the turnover the previous year was $80 million. In conclusion Ms AA stated: [47]
I would – do I change my opinion on the basis of that? I would probably have a – a different perception about the role of the husband and the transferability of the goodwill. Do I – do I think a business EBIT approach is completely out? No, I don’t because I don’t think – I mean, Mr AO indicated that they hadn’t actually tested the market in terms of would someone pay a business EBIT amount for goodwill.
She also added: [48]
MR DICKSON: And would you agree with me that where you’ve got some doubts about the alternative approach, the traditional approach might be a safer one?---Well, yes, having - - - Having had my discussion with Mr AO this morning, I – if it is, after testing the market, the situation that the business EBIT would not be applied for a second-hand business – it’s just not the way it’s going to go – then I would go back to a traditional earnings method to ascertain whether there’s still a level of goodwill that – that’s in the business. Yes.
[47] Transcript in Confidence, 24 September 2020, p. 13, 38-43.
[48] Transcript in Confidence, 24 September 2020, p. 16, 13-22.
Ms AA also conceded that she was less confident with the alternative approach compared to the traditional future maintainable earnings method in consideration of Mr AO’s points about differences between new and second-hand businesses referred to above such as brand loyalty, repeat customers, maintenance and parts, amongst other terms.
Mr AO in his evidence states that he was not asked to give a specific valuation of the business, but to consider specifically the valuation methodology of Ms AA. Mr AO agreed that he was not familiar with the infrastructure used at the new business as compared to when he looked at D Business; he had not been to the various premises of the new business; he had not read the husband’s affidavit in respect of the ownership of the business or the leasing of properties; he had not looked at the profit and loss statements or balance sheets for the enterprise; and that he was solely reliant upon Ms AA’s report.
It was put to Mr AO that he had not considered that the business receives considerable profit from the registration of stock. This process generated $260,000 in income in 2019. Mr AO stated that his part of the business is common in second-hand businesses. It was also put to Mr AO that the business has earnt considerable profits of about $4 million in the financial year ending June 2019 from financial products. Mr AO stated that he only knew about the $646,652 earnt from B Pty Ltd which was contained in Ms AA’s report at page 50. Mr AO was referred to the husband’s trial affidavit at paragraphs 79 and 80, where he explains the upgrade of the facilities to offer extra services to customers. Mr AO agreed that the maintenance services was more than just buying and selling stock. Mr AO agreed that he did not know what profit was raised from these maintenance services nor the stock sales operated from the JJ Street property.
Mr AO was directed to his report where he states in effect that, the business generates all of its turnover and profit from sales of second-hand stock and sales of finance and insurance products. Mr AO conceded that this was not accurate and was perhaps an exaggeration,[49] but qualified this by stating that he had noted that the husband does not maintain any significant retail, maintenance or part sales operation, and that those profits reflect only around one per cent of the turnover.
[49] Transcript in Confidence, 24 September 2020, p. 56.
Ultimately, I am not accepting Mr AO’s evidence. I am accepting Ms AA’s evidence which was revised by reference to certain information conveyed by Mr AO.

Table of the interests of the parties to the marriage in property

The husband submitted in final submissions that the assets 1 to 7 in the below table should be taken as an inclusive figure of $25,420,081. He arrives at this figure by taking Ms AA’s headline figure on page 5 of her report of $27,357,000 and deducting $1,560,000 which is her goodwill figure, which she abandoned and adopted a traditional future maintainable earnings approach. Also deducted is $376,949 from the total value of the husband’s loan account, as outlined earlier in these reasons at paragraph 148. It is acknowledged that the writing off of those assets will not trigger a tax liability.
The wife submits that assets 1 through to 7 in the below table, on a maximum, arrives at $30,264,000 and on a minimum, $28,699,000 depending on the position accepted in relation to the T Street property.
I was informed in final submissions that there should be an offset of $377,560 against Ms AA’s figures for the assets of ZZ Pty Ltd other than the AG Street properties.
My findings about matters in issue appear above. Incorporating those findings, and adopting the approach agreed by counsel to group together items 1 through to 7 in the below table, the property of the parties is as follows:

Non Superannuation Assets	Ownership/Control	Value
1	D Pty Ltd as Trustee for the Anolick Trust, trading as “GG Business”	Husband	$25,420,081
2	B Pty Ltd	Husband
3	KK Pty Ltd as trustee for the YY Trust-: 1. T Street, Suburb U ($7,430,000); 2 .5 BK Street, Suburb S ($1,365,000); 3. 7 BK Street, Suburb S ($1,720,000); 4. JJ Street, Suburb S ($1,435,000); 5. BL Street, Suburb S ($450,000); 6. BM Street, Suburb F ($1,550,000); 7. Plant and equipment at above properties as valued by Mr AM - single expert witness ($127,895)	Husband
4	MM Pty Ltd as trustee for the MM Trust	Husband
5	LL Pty Ltd	Husband
6	ZZ Pty Ltd as trustee for the Anolick Family Trust:- Being properties:- 1. 5 AG Street, Suburb H ($610,000); 2. 3 AG Street, Suburb H ($940,000)	Husband
7	Related party loans owing to the Anolick Group	Husband
8	E Street, Suburb F which has an agreed value of $2,350,000 and a mortgage of $1,600,249	Wife	$749,751
9	L Street, Suburb K	Wife	$726,640
10	G Street, Suburb H	Wife	$595,000
11	J Street, Suburb K	Wife	$1,560,000
12	M Street, Suburb H	Wife	$163,227
13	Jewellery	Wife	$300,000
14	Cash	Wife	$40,000
15	Proceeds of Wife’s claim against BF Company/Plumber	Wife	NIL
16	Husband's loan to sister in approx. 2004, repayable on the passing of their mother	Husband	$250,000
17	Monies withdrawn and/or utilised by the wife but not including legal fees in item 24 but which should be added back as a premature distribution [50]	Wife	$262,985
18	Monies withdrawn and/or utilised by the husband but not including legal fees in item 23 but which should be added back as a premature distribution	Husband	NIL
19	Wife’s Motor Vehicle 1 (…)	Wife	NIL
20	Husband’s Motor Vehicle 3 (…)	Husband	NIL
21	Husband’s Motor Vehicle 2	Husband	NIL
22	Motor Vehicle 4	Husband	NIL
23	Husband's legal fees paid and to be added back as a premature distribution of property to him[51]	Husband	$765,050
24	Wife's legal fees paid and to be added back as a premature distribution of property to her	Wife	$1,452,435
TOTAL	$32,285,169
(Husband total: $26,435,131 Wife total: $5,850,038)
Superannuation	Ownership/Control	Value
25	Super Fund 1	Husband	$505,291
26	-	Wife	NIL
TOTAL	$505,291
TOTAL DIVISIBLE ASSETS	$32,790,460
Liabilities	Ownership/Control	Value
27	Taxation liability of the Anolick Group including Capital Gains Tax on property at R Street.[52] At trial the figure was agreed at $2,042,651 but on 31 January 2020 AC Accountants certified that the correct final figure was in fact $2,032,336.70. This figure has been paid, as agreed, from the net sale proceeds of the R Street property.	Husband	$2,032,337
28	Taxation liabilities (including penalties) arising from Anolick Family Trust for rental receipts by wife of the properties at AG St Suburb H for the FYE 30 June 2013 to 30 June 2019	Wife
29	Wife's Land Tax Levied as at February 2019[53]	Wife	$41,400
TOTAL	$2,073,736
TOTAL DIVISABLE PROPERTY	$30,716,723

[50] Combination of the figures from Exhibits “H12” and “H13”, being premature distribution of capital by the wife used for general outgoings.

[51] Taken from exhibit “H1” being $934,556.38 less single expert witness fees of $169,506.24

[52] Exhibit “H3” Court Book 3, p. 638 - tax bill that will be assessed in the husband’s name when he lodges his tax return

[53] Husband originally asserted that the wife has deposed to having met land tax liabilities out of rental income. Husband now says, which I accept, that the wife should have otherwise been able to pay the debt, considering the funds available to her after separation from the husband and from rental income.

Is it just and equitable to make a property settlement order?

I must be satisfied that it is just and equitable, within the meaning of s 79(2) of the Act, to alter the interests of the parties in the property identified above. As has been articulated by the High Court[54] the expression just and equitable is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. The Court requires a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage. In many, cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not, and will not, thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence, it will be just and equitable that the Court make a property settlement order. I am satisfied that is the case here. Whilst not determinative of the issue, I note that the parties concede that it is just and equitable for there to be an alteration of property interests between them.
[54]Stanford & Stanford [2012] HCA 52 [41]-[42].
I am satisfied that it is just and equitable to alter the interests of the parties in property by virtue of the breakdown in their relationship rendering the common use and benefit of their property no longer practicable.

Section 79(4)

In considering what (if any) property settlement order should be made I am required to take into account the various contributions made by each party, the effect of any proposed order on the earning capacity of the husband and the wife, matters under s 75(2) of the Act insofar as they are relevant, any other order made under the Act affecting the husband, wife and the children O and P (or any of them) and any child support under the Child Support (Assessment) Act 1989.

Contributions

Contributions under s 79(4)(a) of the Act are financial contributions made directly or indirectly by or on behalf of the party to the marriage, to the acquisition, conservation or improvement of any of the property of the parties or either of them.
The wife submitted that the husband should get some credit for the impact of his initial contribution but that it was not until their relationship formed that they began to acquire real property. With respect, that submission ignores the nature of the husband’s business interests as introduced into the relationship.
I accept that the husband’s initial contribution of his business was very substantial. It was an established concept and successful venture commenced ten years before the parties’ relationship commenced. At paragraph 4 of the husband’s outline of case filed 2 September 2019, there is a persuasive suite of figures illustrating its performance, adopted in evidence. The husband’s business enterprise has carried the parties to their accumulated wealth. I do not ignore the savings of $13,000 which the wife introduced in 2000 which was applied towards the deposit of her first property at the BC Street property. The wife has gone on to acquire a valuable portfolio of properties during the marriage. However, the wife’s direct financial contributions are much less than those of the husband.
Contributions under s 79(4)(b) of the Act are non-financial contributions made directly or indirectly by or on behalf of the party to the marriage to the acquisition, conservation or improvement of any of the property of the parties or either of them.
The wife, in her outline of case filed 30 August 2019, highlights her management of real properties, in particular, her endeavours for rectification of the family home at the E Street property. However, the evidence established that her contributions, in that regard, are questionable. In sum, she has obtained an assessment of rectification costs of $1.9 million and recovered only $107,255.
Contributions under s 79(4)(c) of the Act are contributions 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 contribution made in the capacity of homemaker and parent.
The parties started a family in 2002. The husband acknowledges that the homemaker and children’s primary carer during their period of cohabitation was held by the wife and that she was responsible for the large majority of tasks relating to the children’s care. He deposed “I do not deny that this enabled me to work to the level that I did, particularly when the children were of a young age.” However, the husband also made a homemaker and parent contribution, and has increased his involvement in that regard since the parties separated. The children currently spend time with him on a week about basis.
In closing submission counsel for the husband urged that I find the contributions made by the parties, in all capacities, as to two thirds to the husband and one third to the wife.
The wife’s outline of case contends for an assessment of the contribution as equal. The wife’s case, as put by her, is that it was because of her non-financial contributions in being the primary carer for the children that the husband was able to develop and build his business into what it is.
In terms of what could realistically be justified on the evidence, senior counsel for the wife submitted that contributions ought to be assessed as 40 per cent to the wife and 60 percent to the husband.
Each party made valuable contributions in various capacities but the husband’s initial contribution and the use to which it was put during the marriage must be recognised. I assess the parties’ contributions at 33.3 percent to the wife and 66.7 percent to the husband.

Effect of proposed order upon the income earning capacity of either party

By virtue of the husband’s restructuring, the impact of meeting the wife’s entitlement pursuant to this Order is going to be more manageable than it would otherwise have been.

Section 75(2) Factors

I only need consider the factors which are relevant. Section 75(2)(o) of the Act also requires the Court to take into account “any fact or circumstance which, in the opinion of the court, the justice of the court requires to be taken into account” which enables my discretion to be more broadly informed.

The age and state of health of each of the parties[55]

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

The wife is 40 years old. She is not employed outside the home.
The husband is 55 years of age and works as a business proprietor. He owns and operates a series of businesses involved in the transport industry.

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[56], and the duration of the marriage and the extent to which it has affected the income earning capacity of a party whose maintenance is under consideration[57]

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

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

The husband accepts the figure of income provided by Ms AA as $350,000 per annum. The wife, whilst not employed outside the home, holds around $2,350,000 in real property that she receives rental income from, if she maintains the properties in a habitable state.
The wife’s outline of case posits that the wife’s income earning capacity was “substantially diminished by the marriage.” It is more correct to say that the wife did not establish a career outside the home during the marriage. When asked about seeking employment or returning to study once these proceedings are finalised, the wife’s evidence was that she was considering re-partnering and that “[she] would rather have a family rather than going back to studies”.[58] She stated that she is close to turning 40 years of age and that she could still have a “healthy pregnancy” before turning 40. The wife’s senior counsel, Mr Coleman SC, submitted that the husband’s position, that the wife could have a career in business development, is “simply fanciful” based on the wife’s lack of education and commercial experience. The wife has no formal qualifications or tertiary degrees. She met the husband and formed a relationship when she was 18 years of age and the husband was in his early 30’s and running an established business.
[58] Transcript in Confidence, 5 September 2019, p. 93-94, 45-31.

It was submitted on behalf of the wife that the greatest factor to consider in an alteration of the parties property interests is the disparity between the husband and wife in relation to earning capacity. The wife’s counsel submits that it is difficult to identify any significant earning capacity held by the wife, including considerations about the wife’s attitude and personality. In this respect, it cannot be ignored that the wife had over $260,000 at her disposal which she chose to spend on jewellery and other luxury goods rather than maintain such funds for future use. Further, it was the wife’s evidence in relation to securing future employment that she had chosen not to seek employment as she wants to re-partner and have more children.
In terms of the wife’s education, the wife commenced a degree at BX University. The wife’s evidence was that she was doing well enough with her studies until she sustained a black eye which remained visible for two weeks and caused her to drop out of the course. The wife also maintained that she was also dealing with the building dispute with BF Company so was unable to maintain her studies. The wife has not undertaken any charitable work that has occupied her time.
The wife does not have the same business skills and experience as the husband but she earns income from property investment or has the capacity to do so. The husband has his ongoing business but carries all of the business risks and responsibilities. Whereas his income has been estimated at $350,000 per annum, Ms AA also recognises that his losses in the coming year will approximate $350,000. The husband’s assets are largely tied up in his business and there is significantly less capacity for him to liquidate them than the wife has capacity to liquidate or trade in her real property portfolio.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years[59] and the commitments of each of the parties that are necessary to enable the party to support himself or herself and a child or another person that the party has a duty to maintain[60] and the responsibilities of either party to support any other person[61]

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

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

[61]Family Law Act 1975 (Cth) s 75(2)(e).

The children live week about between their parents’ homes. O is 17 years old and P is 16 years old. My impression is that the husband carries the bulk of the children’s expenses over and above food and accommodation and does so out of expediency or generosity rather than as a legal duty.
The husband has a new partner whom he employs in his business on a full time salary and provides her with a luxury car. It was not contended that the husband has a legal duty to maintain his partner.
I regard the parties’ relevant commitments as equivalent.

The eligibility of either party for a pension, allowance or benefit under any law or any superannuation fund or scheme and the rate of any such pension allowance or benefit being paid to either party[62]

[62]Family Law Act 1975 (Cth) s 75(2)(f).

Neither party seeks a split of the superannuation. Each agrees that they maintain their rights in relation to any superannuation interests they each hold.

Ability to maintain a standard of living that in all the circumstances is reasonable[63]

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

Both parties will be able to maintain a reasonable standard of living

Conclusion on s 75(2) factors

Senior counsel for the wife submitted that an adjustment of 10 per cent in favour of his client is justified. Queen’s Counsel for the husband submitted that no adjustment was justified.
The wife will have assets approximating $10 million on account of contributions. The only factor which I consider requires an adjustment pursuant to s 75(2) of the Act is the disparity between the parties’ financial position. In that regard I will make a small adjustment of 3.7 per cent which rounds up the wife’s entitlement on an alteration of property interests to 37 per cent.

Other orders affecting the wife and children

Neither party seeks orders for spousal maintenance or in relation to child support.
The husband however, as part of his final orders, sought that he not continue to pay maintenance for the wife’s support whilst judgment is pending. In particular, he seeks that all interim orders be discharged.
At the time of the hearing, the husband was paying the wife $17,300 a month in maintenance. In addition, he is responsible for the mortgage repayments on the family home and he pays the children’s school fees. It is a package of some $325,000 a year after tax to the wife. It is significant having regard to the equal shared care of the parties’ children. It is also a significant sum to do without. The wife has also had the benefit of the rent from the properties in her name and some expenses on those properties are deductable. To the extent that the wife complains of the lack of rental income since July 2018, the husband says that is due to the wife’s lack of responsible spending. For instance, she spent $37,000 in July 2018 on jewellery as opposed to spending the money on repairing the property so that it could be rented and generate income. Her total expenditure on jewellery since 3 January 2017 was $265,000. The wife also maintains two unencumbered properties at AG Street, Suburb H.
The husband seeks that his obligation to support the wife cease pending the final determination of this matter. Queen’s Counsel for the husband referred to Ms AA’s evidence that the business is budgeted to lose $350,000 in the 2019/2020 financial year. Therefore, effectively, the family income is zero, other than rental income from rental properties, but if the husband actually pays himself those funds then there will be a corresponding loss in the business. That means that he and the wife will effectively be living on capital. I note, that judgment has been reserved for significantly longer than the husband would have anticipated when Mr Dickson QC made his submissions in this regard. The husband says he will continue to pay the children’s school fees and child support as assessed. This Order will require that he pay the mortgage on the family home in any event.
The wife seeks that maintenance payments continue for her until the determination of these proceedings.
The husband’s maintenance obligations for the wife were largely the product of expediency and only ever intended by him to be short-term. However, the various restructuring and liquidation processes took over and the wife has received benefits for an extended period of time.
In final submissions, I suggested a mid-way point whereby the husband continues the payments but is entitled to treat them as pre-payment of the monies which will become due to the wife. In the circumstances of this case and the wife’s capacity to spend readily on luxury items since separation, that strikes me as a just and equitable arrangement. I will make the Order accordingly noting, however, that the husband’s liability for all child-related payments continues. The adjustment will be effected in the same way as the taxation liability that is yet to be ascertained.

Single Expert Costs

The husband seeks that the wife pay one half of the costs of the single expert witnesses where he initially met all of the costs. On 12 June 2019, a suite of orders were made for the involvement of single expert witnesses for the valuation of 13 real properties by X Valuations, the valuation of the corporate entities and trusts by AA Accounting and the valuation of the stock, plant and equipment of the entities and trusts by Mr AY and others. Paragraph 9 of the Order made on 12 June 2019 provided that the husband would pay for the entirety of the single expert witnesses professional fees in the first instance with the wife’s share of those costs to be categorised at trial as part property settlement in her favour and the husband’s half share to be categorised at trial as a part property settlement in his favour.
Any party seeking further orders in relation to costs incurred to retain expert witnesses may make an application.

Conclusion

I have looked back, identified and considered the evidence adduced by the parties and the submissions of their legal representatives. There was a lot of evidence, and if I have not mentioned part of the evidence that does not mean that I have not taken it into account.
On 30 October 2020, I handed down my draft reasons for judgment and produced a draft minute of order to which I understood the parties were agreed as to form but not as to the result. That is the proportions in which the interests of the parties to property have been altered by me. I also provided counsel with transcript of final addresses.
The property of the parties will be divided as to 37% to the wife and 63% to the husband. The wife will take all of the real properties she has accumulated and receive a sizeable cash payment from the husband. That is an entitlement of more than $11 million before adjustments for taxation when ascertained, expert expenses and repayment of periodic payments since final submissions.
The below table and successive paragraphs are also a matter of agreement between the parties. Certain necessary rectifications and corrections were notified to counsel by a marked up copy of reasons which was made available on 10 November 2020[64] to which neither party has taken exception. Accordingly, I have rectified an omission which appeared at paragraph 4 of my first reasons. I have corrected the typing, arithmetical and obvious errors. I have clarified at paragraph 203 above that the wife’s expenditure of $265,000 on jewellery occurred post 3 January 2017[65] and is addition to the $300,000 of jewellery retained by the wife. I thank counsel for considering the errors which required correction and for their attention to drafting.
[64] Exhibit “C4”.
[65] Exhibit “H12”
Counsel for the parties provided the following tabulation of the effect in real terms of the Order which I make.[66] The updated balance sheet, using the figures appearing in the table at paragraph 170 of these reasons is as follows:
[66] The original document is marked exhibit “H14”.

Item no. from Table at par 170 of these reasons	Item	Value ($)	Comment
HUSBAND'S PROPERTY
1-5; 7	Anolick Group (valued at $25,420,081) *less* Anolick Family Trust (valued at $1,550,000) *less* Motor Vehicle 1 (valued at $80,000)	23,790,081	Anolick Family Trust and Motor Vehicle 1 is to be retained by the Wife and is included under "Wife's property" below.
8 liability	E Street, Suburb F CBA mortgage as at 26 Sep 2019	-1,600,249	Mortgage is in the Husband's name and has been maintained by him post 26 Sep 2019. Current mortgage figure is $1,520,189 with next instalment of $9,850 due on 18 Nov 2020. Wife is retaining the property unencumbered.
16	Husband's loan to sister	250,000
18	Monies withdrawn and utilised by the Husband, not including legal fees in item 23	Nil
20	Husband's Motor Vehicle 3	Nil
21	Husband's Motor Vehicle 2	Nil
22	Motor Vehicle 4	Nil
23	Husband's legal fees paid and to be added back (excluding single expert witness fees)	765,050
25	Super Fund 1	505,291
27	Tax liability CGT on R Street	-2,032,337	The figure in the judgment was $2,042,651. However, on 31 January 2020 AC Accountants certified that the correct final figure was in fact $2,032,336.70. As this figure has now been paid (by agreement) from the net sale proceeds of the R Street property, held in Lander & Rogers Trust account.
28	Taxation liabilities arising from Anolick Family Trust, for rental receipts by Wife (63% of total liability)	NA	This figure is to be confirmed. It is to be dealt with separately pursuant to draft order 9.
TOTAL PROPERTY OF HUSBAND	21,677,836
WIFE'S PROPERTY
6	Anolick Family Trust · 5 AG Street, Suburb H: $610,000 · 3 AG Street, Suburb H: $940,000	1,550,000	Wife is retaining Anolick Family Trust
8 asset	Gross value of E Street, Suburb F	2,350,000	Wife is retaining the property unencumbered. Husband will pay out the mortgage which is in his name.
9-12	Wife's other real properties: · L Street, Suburb K: $726,640 · G Street, Suburb H: $595,000 · J Street, Suburb K : $1,560,000 · M Street, Suburb H: $163,227	3,044,867
13	Jewellery	300,000
14	Cash	40,000
15	Proceeds of Wife's claim against BF Company/Plumber	Nil
17	Monies withdrawn and utilised by the Wife, not including legal fees in item 24	262,985
19	Wife's Motor Vehicle 1	80,000	Single expert witness BZ's valuation of Motor Vehicle 1 dated 29 Aug 2019
24	Wife's legal fees paid and to be added back	1,452,435
29	Wife's land tax as at February 2019	-41,400
28	Taxation liabilities arising from Anolick Family Trust, for rental receipts by Wife (37% of total liability)	NA	This figure is to be confirmed. It is to be dealt with separately pursuant to draft order 9.
TOTAL PROPERTY OF WIFE	9,038,887
TOTAL PROPERTY (HUSBAND AND WIFE)	30,716,723
WIFE'S ENTITLEMENT = 37% OF TOTAL PROPERTY	11,365,187.50
HUSBAND'S ENTITLEMENT = 63% OF TOTAL PROPERTY	19,351,535.50

It is noted that there are currently funds in the sum of $4,946,927.76 held in Lander & Rogers Trust account on behalf of the parties, being the net sale proceeds of the R Street property. At the hearing on 30 November 2020, it was agreed between the parties that the husband could apply part of the funds held by Lander & Rogers to obtain a discharge of the mortgage over the E Street property. The cash component of the wife’s entitlement, to bring the alteration of property interests to be 37% of total property value is calculated by counsel at $11,365,187.50 less wife's keep of $9,038,887 = $2,326,300.50. From that sum of $2,326,300.50 there is to be deducted the monies already paid by the husband to the wife since 26 September 2019, being $224,900 of spousal maintenance at $17,300 per month from 26 September 2019 to date (13 months). There is also to be deducted the amount of the single expert fees paid by the Husband in the first instance, totalling $94,893. The $94,893 comprises:
a)50% of Exhibit "H1" ($169,506.24): $84,753.12;
b)50% of the fees of Ms AA, paid by the Husband on 3 September 2019 in the sum of $20,280: $10,140.
Therefore, pursuant to the Order the total payment to Wife from the Husband is $2,006,508, being:
a)$2,326,300.50:
i)Less $224,900
ii)Less $94,893
iii)Equals $2,006,508.
The Husband is to discharge the CBA mortgage secured over E Street in accordance with paragraph 5 and, indeed, he is likely to have already done so. Anolick Family Trust is to be transferred to the Wife in accordance with paragraph 8.3 of the Order.
I have already determined that it is just and equitable, within the meaning of s 79(2) of the Act to make an order altering the interests of the parties in their property. Further, I am satisfied that this alteration of property interests is appropriate within the meaning of s 79(1) of the Act and I order accordingly.

Costs

Any application for costs arising from this determination may be filed in accordance with the Rules. It will be my preference to fix the quantum of any costs ordered rather than to require the parties to go through an assessment process. Without limiting the basis upon which any party’s costs may be calculated, the matter will be expedited by an application for costs providing a breakdown or memorandum of costs drawn in accordance with Schedule 3 to the Rules. If an application for costs is filed, my Associate will list the matter by telephone for directions.

I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 October 2020 and revised on 20 November 2020 under r 17.02A of the Family Law Rules 2004 (Cth).

Associate:

Date: 20 November 2020

[2020] FamCA 983

30 October 2020 Amended pursuant to r 17.02A of the Family Law Rules 2004 (Cth) on 20 November 2020.

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