B and G

[2010] FCWA 33

[2010] FCWA 33

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	B and G [2010] FCWA 33
CORAM	:	MONCRIEFF J
HEARD	:	10, 11 AND 12 FEBRUARY 2010
DELIVERED	:	5 MARCH 2010
FILE NO/S	:	PTW 2653 of 2007

BETWEEN : B

Applicant

AND

G

Respondent

Catchwords:

FAMILY LAW - property settlement - de facto relationship - contributions - no special contributions - pool of assets - distribution

Legislation:

Family Court Act 1997 (WA) s 205ZA, s 205ZD(2) and s 205ZD(3)

Interpretation Act 1984 s 13A(2)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr J Hedges
Respondent	:	Mr F Castiglione QC

[2010] FCWA 33

Solicitors:

Applicant	:	Clairs Keeley
Respondent	:	Gibson & Gibson

Case(s) referred to in judgment(s):

Browne v Dunn (1893) 6 R 67
Day and Darby [2006] FCWA 26
Figgins and Figgins (2002) FLC 93-122
Hendler and Hendler; Moore (1992) FLC 92-231
JEL and DDF (2001) FLC 93-0
Lambert v Lambert [2002] EWCA Civ 1685 [2003] 4 All ER 342
McLay and McLay (1996) FLC 92-667
R v Birks (1990) NSWLR 677

[2010] FCWA 33

1 The applicant, [Ms B], and the respondent, [Mr G], are unable to agree the

distribution of property between them consequent upon the breakdown of their
relationship.

2 They lived in a de facto relationship from September 1994 to either June, or

thereabouts, of 2005 on the respondent’s evidence, or until 9 February 2007 on the
applicant’s evidence. There are no children of the relationship.

3 At the commencement of their relationship they owned very little and at the

conclusion of their relationship the pool of assets as between them comprised many
millions of dollars.

4 The applicant has sought that the net assets of the parties be divided equally

between them in specie. The respondent, whilst agreeing that the assets should be divided between them, in specie, argues that the applicant is only entitled to 25% of the pool of assets. Additionally at trial the respondent claimed to have made what is known as a “special contribution”.

5 At the commencement of the proceedings the dispute between the parties was of

a greater range than it was at the conclusion of the proceedings. Whilst I will deal with these issues in greater detail further in these reasons, the position adopted by the respondent was that:

- First, that the parties separated in 2005, not 2007;

- Secondly, that he held some $3.6 million worth of assets on trust
for his father;

- Thirdly, that the applicant made a minimal contribution to the accumulation of what is now a significant pool of assets (whilst he claimed to have made a “special contribution”); and

- Fourthly, that I should not add back into the pool of assets the sum of $180,000 used by him from the proceeds of sale of some shares.

6 It is common ground between the parties that at least from September 1994 to

mid 2005 they lived in a de facto relationship. The principles that apply to the division of property as between de facto couples are the same as those that apply to persons that are legally married to each other, save and except that the Court, exercising jurisdiction under the Family Court Act 1997, does not have the power to make superannuation splitting orders, by virtue of the constitutional limitations on the Court’s power.

7 Accordingly, the principles apply as if the parties were married and, indeed, the

changes to the Family Court Act that came into force at the end of 2002 were intended to avoid any discrimination between the application of principles to parties who were married and those who were not, but lived in a marriage-like relationship, irrespective of gender.

8 The steps that must be taken in determining a dispute of this nature between the

parties are well settled, namely the Court must follow four effective steps: First, the

[2010] FCWA 33

Court must identify the pool of assets. Secondly, the Court must determine the respective contributions of the parties (both direct and indirect) to the acquisition, preservation and maintenance of the pool of assets for which contribution can be financial, non financial, and as a homemaker and parent. Thirdly, the Court must consider the factors prescribed under s 205ZD(3) of the Act to determine whether, having regard to the factors enumerated therein, the Court should make any adjustment to the outcome that would otherwise flow from its findings as to contribution. Finally, the Court must then assess the overall outcome of its findings under the three earlier considerations and determine whether the result thus achieved is just and equitable in all the circumstances.

The parties

9 The applicant was born in the United States of America [in] October 1961 and

was accordingly 48 years of age at trial. The respondent was born in [South Australia], [in] February 1964 and was accordingly, at the date of trial, 46 years of age.

10 The respondent’s father, [Mr G Snr], had previously been a party to the

proceedings, having filed an application on 19 November 2008, seeking leave to
intervene and orders in the following terms:

1. A declaration that 1,500,000 shares in the company XYZ Ltd (“the shares”) currently held in the joint names of the parties pursuant to an order of this court dated 22 October 2008 are the property of Mr G Snr.

2. The husband and the wife (sic) do all acts, matters and things and sign and execute all documents necessary to transfer the shares to the intervener, Mr G Snr.

3. The wife (sic) pay the intervener’s costs in relation to these proceedings.

11 The application for leave to intervene was determined in favour of Mr G Snr by

her Honour Justice Martin on 8 December 2008, and thereafter Mr G Snr had all the
rights and obligations of the principal parties.

12 The matter was listed for trial before her Honour Justice Martin at the end of

April 2009.

13 When the matter came on for trial before her Honour the intervener sought leave to withdraw from the proceedings, which leave was granted.

14 What is somewhat curious is the representation made to the Court in advance of

the listing of trial, by the intervener’s solicitors, that “other than his application to intervene, which has been disposed of, he does not have a pending application as such. If he did, he would need leave to discontinue”, a statement somewhat at odds with the declaratory relief that the intervener was seeking. In any event, the respondent sought to rely on affidavits of his father, to which I refer below.

[2010] FCWA 33

The evidence

15 The applicant relied on her trial affidavit, and the Statement of Financial

Circumstances she had filed with her trial affidavit in October 2008. She was cross- examined by Mr Castiglione, one of Her Majesty’s Counsel, appearing for the respondent.

16 The respondent sought to rely on three affidavits that he had filed. He also

sought to rely on an updated, and previous, Statements of Financial Circumstances filed on his behalf. Additionally, at the commencement of the trial, he sought leave to file, and rely upon, a further affidavit of his father, in addition to two previous affidavits relied upon filed in November 2008 and August 2009. In light of Mr Castiglione’s concession that there was nothing contained in the affidavit sought to be filed that could not have been included in the affidavit filed on 24 August 2009, I refused his application for leave.

17 The respondent also sought to rely on an affidavit of [Mr A] filed in January

2009. During the course of the hearing, for reasons which I will discuss later in this judgment, the respondent no longer sought to rely on the affidavits of his father, but continued to rely upon the affidavit of Mr A.

18 The respondent was cross-examined by Mr Hedges, appearing for the applicant, but Mr A was not required for cross-examination.

19 I have detailed particularly the affidavits sought to be relied upon by the

respondent, as under the relevant Rules of the Court, the usual procedure is for each party to file one affidavit of themselves and each witness they intend to rely upon at trial.

20 In this case, the respondent sought to rely on three affidavits filed by himself, a document styled his “trial affidavit” filed 8 December 2008, a further affidavit filed 18 December 2008 and another affidavit filed 24 August 2008. Additionally he had filed the two affidavits of his father that he sought initially to rely on for trial.

21 Credit is a significant issue in these proceedings.

22 I was impressed by the presentation and demeanour of the applicant whom, I

consider, did her very best to answer, fairly, questions put to her, to make appropriate concessions and overall represent as truthfully as she could recollect the facts in the matter. She was unshaken in cross-examination and I found her to be most impressive.

23 The respondent’s presentation was in sharp contrast to that of the applicant. For

reasons which will be clarified below, I find the respondent (and his father) set out to deliberately mislead the Court and openly lied in his trial affidavits. His presentation and demeanour in the witness box was argumentative and unimpressive. To his credit, he ultimately agreed that he had misrepresented the position as to his father’s ownership of shares, the subject matter of the orders sought by his father at the time he was a party, and conceded that the value of the shares should be added back into the pool of assets available for distribution between the parties.

[2010] FCWA 33

24 Whilst the active misrepresentations made to the Court by the respondent and his

father may have other repercussions that flow, they are also of particular relevance to credit and, given the nature of the position adopted by the respondent in his evidence and until the conclusion of his cross-examination, I find I cannot safely rely on any representation he has made to the Court, save and except where the same is not disputed.

25 The difficulties for the respondent in this regard are further compounded by

contradictory statements in affidavits and other documents he has sworn for the purpose of these proceedings, notably as to the date of separation, to which I will refer later in these reasons.

The pool of assets

26 The parties agreed the following table at the conclusion of the trial, as representing the asset pool available for distribution between the parties:

TABLE OF ASSETS, LIABILITIES AND RESOURCES

Assets

ANZ bank account no.xxx	De facto wife	$20
Westpac bank account no. xxxx	De facto wife	$3,528
Westpac bank account no.xxx(For CGT)	De facto wife	$10,280
ABC Ltd (54,847 shares) ($0.175)	De facto wife	$9,598
XYZ Ltd (233,462 shares) ($2.42)	De facto wife	$564,978
XYZ Ltd (jointly held) (4,044,767 shares, 50%) ($2.42)	De facto wife	$4,894,168
Household Contents	De facto wife	$1,000
Net proceeds of sale of XYZ shares	De facto wife	$27,000
Partial property settlement	De facto wife	$50,000

Total Assets	$5,560,572
Liabilities

Capital Gains Tax payable 2009	De facto wife	$6,400
Total Liabilities	De facto wife	$6,400

NET ASSETS $5,554,172

[2010] FCWA 33

Assets

Westpac bank account no. xxxx	De facto husband	$550
Westpac account no. xxxx (4/1/10) (proceeds of sale of	De facto husband	$3,791,367
shares)
XYZ Ltd (jointly held) (4,044,767 shares, 50%) ($2.42)	De facto husband	$4,894,168
ABC Ltd (1,000,000 shares) ($0.175)	De facto husband	$175,000
1969 Mercedes (sold)	De facto husband	$1,000
WC Pty Ltd	De facto husband	$40,000
25 ft [boat]	De facto husband	$7,500
Amount withdrawn by de facto husband from proceeds	De facto husband	$180,000
of sale of shares
Shares received in XYZ Ltd. (2009)	De facto husband	$18,000
Partial property settlement	De facto husband	$50,000

Total Assets	$9,157,585
Liabilities

Capital gains tax liability	De facto husband	$440,082
Total Liabilities	$440,082

NET ASSETS	$8,717,503
TOTAL NET ASSETS	$14,271,675
Superannuation

[Superannuation Scheme]	De facto wife	E $148,720
GMG Superfund	De facto husband	$81,000

Total Superannuation	$229,720
ABC ($0.175 per share as at 10 February 2010) XYZ ($2.42 per share as at 10 February 2010)

27 As I have previously remarked, at the commencement of the trial the respondent

maintained his position that 1,500,000 of the shares in the company, XYZ Pty Ltd

[2010] FCWA 33

were beneficially owned by his father. In his opening, Mr Hedges asserted that the respondent’s position that the shares were held on trust for his father was a concocted and deliberate attempt to mislead the Court and to actively misrepresent the true factual situation, a proposition that I have found to be the case.

28 It was not until the third day of trial that agreement was reached as to the pool of

assets available for distribution, subject to some minor finalisation of the capital gains tax liability. Of significance was the respondent’s refusal to accept that he had received the benefit of $180,000 from proceeds of the earlier sale of some shares. It was only after he was cross-examined at some length about the issue that he ultimately conceded that he had, in fact, received that benefit, with the consequence that it should be added back into the asset pool.

29 The issues remaining at the conclusion of the trial then became, firstly, the date

of separation and secondly, the respective contributions of the parties to the asset pool, particularly given that the respondent agitated, at trial, a claim for a “special contribution”.

The outcomes sought by the parties

30 The applicant sought an order that the parties’ shareholdings and respective chattels be divided in specie, the net effect of which would be to settle upon her 50% of the pool of assets at trial.

31 The respondent, in his amended Papers for the Judge and Minute of Orders Sought filed in 9 February 2010, initially sought orders as follows:

1. There be a declaration pursuant to Section 205ZA Family Court Act 1997 (WA) that [Mr G Snr] is the beneficial owner of one and a half million shares in XYZ Ltd held in the name of the respondent.

2. The shares in [XYZ Ltd] held in the joint names of the parties pursuant to the orders made on 22 October 2008 be distributed in specie to the parties as follows:

(a)	25% to the applicant; and
(b)	75% to the respondent.

3. The respondent pay the applicant such sum as to achieve an overall distribution of assets 75%-25% in favour of the respondent.

4. In the alternative, should it be found that the respondent is the beneficial owner of the shares held on behalf of [Mr G Snr]:

(a)	the shares in [XYZ Ltd] held in the joint names of the parties pursuant to the orders made on 22 October 2008 be distributed in specie to the parties as follows:
(i)	15% to the applicant; and
(ii)	85% to the respondent;

[2010] FCWA 33

(b) the respondent pay to the applicant such sum as to achieve an overall division of assets 85%-15% in favour of the respondent.

5. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these or any subsequent orders:

(a)	each party be solely entitled to the exclusion of the other of all property (including choses in action) in the possession of such party as at this date;
(b)	money standing to the credit of any bank account remains the property of the deposit holder;
(c)	each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d)	all insurance policies to remain the sole property of the owner thereof;
(e)	each party to be solely liable for and indemnify the other against liability encumbering any item of property to which the party is entitled pursuant to these orders.

32 In his closing, Mr Castiglione did not press for the declaration sought pursuant

to s 205ZA or the alternative distribution between the applicant and the respondent, namely the 85%-15% distribution which was predicated on the basis of a finding as to Mr G’s beneficial ownership of the 1.5 million shares in XYZ. Accordingly, the respondent’s position at the conclusion of the trial was that the available property should be distributed between the parties such as to effect a 75%-25% division in favour of the respondent.

Misrepresentation about the father’s shareholding

33 In his original response to the application for final orders the respondent had sought orders in the following terms:

“1.

The respondent assign to the applicant 769,230 shares in [XYZ Ltd].

2.

The applicant retain her superannuation and the 250,000 shares in [XYZ Ltd] presently in her possession.

3.

Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any monies due under these orders or any other subsequent orders:

(a)	each 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;
(b)	money standing to the credit of the parties in any bank account remains the property of the deposit holder;
(c)	each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other:

[2010] FCWA 33

(d)	all insurance policies remain the sole property of the owner thereof;
(e)	each party be solely liable for and indemnify the other against any liability encumbering any item of property to which the party is entitled pursuant to these orders.”

34 At that time, namely 20 November 2007, when the response was filed, the

respondent had not sought any declaratory relief with respect to the shares held in
XYZ.

35 Nearly a year later, on 19 November 2008, the respondent’s father brought his application for leave to intervene. He filed an affidavit which he swore on 11 November 2008, as being “in support of my application seeking leave to intervene in these proceedings, and as my affidavit of evidence should there be a defended hearing”.

36 The respondent’s father sought to agitate a claim that he had “an equitable or beneficial entitlement to 1,500,000 shares in [XYZ]”.

37 Mr G Snr deposes in support of his claim as follows:

“19	[My son] and I discussed [a particular company] with each other and we decided to take steps to try and use the Company as a vehicle for developing a suitable mining project.
20	In order for [the company] to move forward it required working capital.
21	[My son] was the sole director and shareholder of a company, [S M Pty Ltd] ("SM"), which traded under the name ["WC"].
22	[My son] and I decided to propose to the, then, directors of [that company] there be a share placement in order to raise working capital of $150,000.
23	That proposal involved [SM] underwriting the share placement.
24	[My son] and I took up shares in the placement, as did other persons including the Secretary of [the company], [Mr A], a Perth resident, who remains the Secretary to this day.
25	I agreed to take up $30,000 in shares at 2 cents per share, that is 1,500,000 shares.
26	As I did not then have the personal funds to pay for the shares, [my son] acquired them for me, via [SM]. [Mr A's] shares were also initially acquired in the name of [SM].
27	As to [Mr A’s] shares, he was initially undecided as to whether he wanted the shares transferred to him personally or his superannuation fund. Within a relatively short period of time he

[2010] FCWA 33

asked for them to be transferred to, as best I can recall, his
superannuation fund.

28 At the time I received the statement recording the transfer of [Mr A’s] shares out of [SM], I noted on the statement that the balance of the shares were mine. Annexure "B" hereto is a copy of that statement. The handwriting on the statement is mine.

29 The funds for the purchase of my shares came from the account of [SM] with the NAB. A copy of the relevant statement is Annexure "C" hereto, the relevant transaction date being 10 September 2003.

30 In addition to my notation on the statement referred to above, in order to record my entitlement to 1,500,000 shares I prepared a handwritten letter in or about September 2003. This was shown to [my son]. It was signed by me.

31 I last saw this letter in about 2005 at the [XYZ] office in [town] where most of my records are kept.

32 I have endeavoured to locate this letter but have been unsuccessful in finding it.

33 I will continue with efforts to endeavour to locate it.

34 Subsequently, I prepared a typed version of this letter from my memory of the contents of the original. This subsequent letter was prepared in or about December 2007 after I had searched for the original letter but was unable to locate it.

35 Annexure "D" hereto is a copy of that letter.

36 Although it bears the typewritten date 6 September 2003, and bears the handwritten date 7 September 2003 beneath my signature, the document was prepared in December 2007.

37 The date 6 September 2003 was, as best I can recall, the date which would have appeared on the original handwritten letter.

38 To the best of my recollection, [Ms B’s] solicitors have been provided with a copy of this letter.”

38 The respondent deals with the question of his father’s shares in his trial affidavit

as follows:

“95. My father acquired shares in the company in 2003 when he invested $30,000 which he had borrowed from me in acquiring the shares. These shares were never held on trust for me, they were always intended to be beneficially owned by my father as was (sic) subsequent shares he received including the 3,000,000 upon the sale by [an organisation] to the company.

[2010] FCWA 33

96. The shareholding by my father resulted in him becoming a director of the company and being in the position to keep a close eye on our respective interest. Equally my father put his capital at risk as did I in our investment in the company. Although the shares were not registered in my father’s name at the time of their purchase it was always my intention that my father would own the shares and that he would repay the funds that I have lent him.

97. I was not and have never been a director of [XYZ]. This has given me considerable freedom to deal with the shares as a director could not do so. If as the director I decided to sell 2,000,000 shares to take advantage of market conditions it would be very likely to cause a run upon the shares themselves as it would be a sign of lack of faith to the market generally.

98. This was another reason that the shares I held on trust for my father were not transferred into his name because he is and always has been a director of the company and therefore his trading in the shares would have attracted market attention and may have adversely affected the value of the shares.”

39 Annexed to the affidavit of Mr G was an issuer sponsored shareholding

statement showing that as at 8 October 2003 3,750,000 shares in [the company] were held by [SM] Pty Ltd, a company of which the respondent was sole director and shareholder.

40 Annexure “C” to Mr G’s affidavit is a copy of a bank statement issued by the

National Australia Bank for the period from 23 August 2003 to 24 September 2003 to [SM] Pty Ltd. A debit transaction on 10 September 2003 shows a cheque payment for $30,000. The document does not show who was the payee of the relevant cheque.

41 Annexure ‘D’ is the letter referred to by Mr G and is in the following terms:

[Mr G Snr]
Address
Suburb
WA

6th September 2003

Dear Sir

I have arranged a loan of $30,000 for the purchase of 1,500,000 [shares] @
0.02 cents. The shares will be held in my name [Mr G] even though you are
the beneficial holder, loan will be for a period of 5 years at an interest rate of

1%.

If you wish to proceed please sign below.

[Mr G Snr]
Signature 7/9/03

[2010] FCWA 33

Yours sincerely
[Mr G]”

42 Of the letter which forms Annexure “D” to the father’s affidavit, the respondent

said in cross-examination that the letter had been prepared from an original that had been in a file, the original being a handwritten note, and that he had prepared the letter “from memory of when the whole transaction occurred”.

43 When asked who composed the letter, he could not recall and he had no answer

to the proposition put to him by Mr Hedges that it was misleading to suggest that the letter was dated in September 2003 and signed by Mr G in 2003, when there was nothing obvious on the face of the letter that it was not an original.

44 Whilst Mr G suggested that the document was prepared in December 2007, the respondent suggested it was prepared some time between March and April 2008.

45 The letter first appeared in disclosure on a list marked as being updated “as at 2

April 2008” and described as: “Letter from [Mr G] to [Mr G Snr]” and the date as
“06/09/03” with no indication that it was a “reconstruction”

46 In July 2008 the applicant’s solicitors sought the original of the letter.

47 On 18 July 2008 the applicant’s solicitors were notified in correspondence from

the respondent’s solicitors that the respondent was “currently searching as to whether he still has the original”, and further, “We enquire as to why you require these documents? Any suggestion that these documents were altered in the process of reproducing is absurd”.

48 No indication was given to the applicant that the letter, attached as Exhibit “D”,

to the father’s affidavit was anything other than an original until the father filed his
affidavit in November 2008.

49 Further, the father has annexed to his affidavit as Annexure “E”, an unstamped

transfer form for non market transactions, involving a transfer of shares. On the documents the company or corporation whose shares are sought to be transferred is identified as “XYZ Ltd”. The transferor is shown as Mr G and the consideration $30,000. The date of purchase is shown as 16 September 2003, with the transferee being the respondent’s father.

50 In cross-examination the respondent conceded that at 16 September 2003 he did

not own 1,500,000 shares, and that they were, in fact, owned by SM Pty Ltd at the
relevant date.

51 The share transfer form was dated 8 August 2008 and the transfer of shares to

Mr G was in breach of orders with injunction made by the court on 25 March 2008 in the following terms:

“The respondent [Mr G] be restrained and an injunction is hereby granted restraining him from selling, encumbering or in any other way dealing

[2010] FCWA 33

with the shares in his ownership or control held in [XYZ Ltd] without the
prior written consent of the applicant [Ms B].”

52 The transaction was subsequently reversed and further orders were made on 22 October 2008 as to the holding of the shares and disposition of funds pending trial.

53 It was upon being cross-examined about the share transfer, namely Annexure

“E” to Mr G’s affidavit, that the respondent conceded that his father did not have any beneficial interest in the shares, and, further, that he no longer sought to rely upon the affidavits of his father, nor call him to give evidence.

54 Clearly, the respondent and his father set out on a path the sole object of which

was to deceive and to attempt to exclude from the pool of assets between the parties 1,500,000 shares in XYZ. At the date of trial, XYZ shares were valued at $2.42 per share resulting in the sum of $3,630,000 (being the value of the relevant parcel of shares) being:

- sought to be excluded from the pool of assets; and

- actively and deliberately misrepresented as being the property of a
third party.

The date of separation

55 In her initial application for final orders filed on 16 May 2007, the applicant pleaded in answer to the questions in the prescribed form, as follows:

Question 13: “When did you and the respondent begin living together?

Answer: “9/1994 (approximately)”.

Question 15: “When did you and the respondent finally separate?”

Answer: “ 9/2/2007”.

56 The applicant filed an amended application for final orders on 16 October 2008, identifying with precision the orders she sought. She again repeated the same dates as to both cohabitation and separation.

57 In the respondent’s response to an application for final orders, in the section

headed “About facts in dispute” and in answer to question 13 – “Do you disagree with any facts contained in the Application for Final Orders (Form 1)?” the respondent had answered “no”. He swore that document on 16 November 2007.

58 In his trial affidavit, which he filed on 8 December 2008, he swore:

“1. I am the respondent herein and I swear this affidavit by way of my
evidence in chief in this matter.

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2. The applicant and I were in a de facto relationship from September 1994 until 9 February 2007. We never married and there were no children.”

59 On 18 December 2008 the respondent filed a further affidavit that he had sworn

on 17 December 2008. In paragraph 1 he swore “I am the respondent herein and I swear this affidavit in answer to the affidavit of the applicant sworn 29 October 2008.”

60 It transpired during the trial that the affidavit did not purport to be an answer to

all of the matters raised in the applicant’s trial affidavit, but rather an answer to some interlocutory issues that were agitated based on that affidavit at a hearing in the Court on 24 December 2008. In any event, at that point, no attempt was made to correct the clear statement of the applicant in paragraph 5 of her trial affidavit, namely, “We separated in February 2007”, or his own evidence in his trial affidavit.

61 However, the respondent’s position changed. On 29 April 2009 he swore a

further affidavit, which was not filed, for reasons that were unexplained, until
24 August 2009. In that affidavit he deposed as follows:

“1.	I am the respondent in these proceedings and I swear this affidavit as clarification of my trial affidavit sworn 8 December 2008.
2.	At paragraph 2 of my trial affidavit I stated that our de facto relationship ended on 9 February 2007. This is incorrect. Our relationship in fact ended on 21 June 2005 when I moved into a property at [S Street]. However a short time after the applicant moved into the [S Street] property with me and we continued to live separately under the same roof.
3.	I then moved out of the [S Street] property on or about 9 February 2007.”

62 In this particular matter, the date of separation is of less relevance than is often the case, as the structure of the asset pool did not change significantly between 2005 and 2007.

63 However, the length of the parties’ relationship is a factor that I have to consider

and whilst ultimately the difference between 11 years and 13 years may be more apparent than real, it is an issue about which I am both asked and am required to make a finding.

64 The applicant was cross-examined about the nature of the relationship between her and the respondent after she commenced to reside in the property at S Street.

65 She agreed the parties slept in separate bedrooms. However, as noted by Holden

CJ in Day and Darby [2006] FCWA 26, parties ceasing to share the same bedroom does not, of itself, mean that the de facto relationship has ended [para 11]. Other than that, little was put to her about the nature of the parties’ relationship.

[2010] FCWA 33

66 Section 13A(2) of the Interpretation Act 1984 enumerates factors that are indicators of whether or not a de facto relationship exists between two persons, although they are described as “not essential”, namely:

(a)	The length of the relationship between them;
(b)	Whether the two persons have resided together;
(c)	The nature and extent of common residence;
(d)	Whether there is, or has been, a sexual relationship between them;
(e)	The degree of financial dependence or interdependence and any arrangements for financial support between them;
(f)	The ownership, use and acquisition of their property (including the property they own individually);
(g)	The degree of mutual commitment by them to a shared life;
(h)	Whether they care for and support children;

(i) The reputation, and public aspects, of the relationship between them.

67 The only aspect of these factors that was seriously explored in cross-examination related to the meeting of household expenses.

68 Despite the concession made by the applicant that the parties slept in separate

rooms, she was not questioned about the nature or continuation of their sexual life
together.

69 Other issues about their shared domestic life and reputation and public aspects of

the relationship between them were not explored or left unresolved in cross-
examination.

70 On behalf of the respondent, documents were admitted into evidence, including

the lease renewal of the property at [S Street], which was renewed in the respondent’s sole name. It was common ground that he had taken the lease in his sole name in June 2005. The fact that it was not changed thereafter, if the parties resumed their relationship is not, in my finding, surprising nor particularly relevant.

71 Mr Castiglione put into evidence a Telstra bill from 2004 which showed the

parties had a joint Telstra account whilst they were residing at [A Street] in April and July 2004. Western Power bills from March 2005 relevant to the property at [M Street], in the sole name of the respondent and accounts issued with respect to [S Street], in the sole name of the respondent, were also tendered by the respondent. Clearly, the electricity bill was issued to the respondent in his sole name prior to June 2005, and from the documents produced it would appear that the account was simply transferred to the new premises. In contrast, but reinforcing the conclusion of simply transferring the existing arrangements to the new premises, the Alinta Gas accounts

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issued in October 2004 and January 2005, for the premises at [M Street], were issued in the sole name of the applicant, and the January, April and July 2006 Alinta accounts for [S Street], were still being issued to the applicant in her sole name.

72 The applicant conceded that the respondent paid the telephone account, which for the most part was a deductable expense for him.

73 The utilities accounts are of little assistance in determining the nature of the

relationship, particularly as it was an agreed position between the parties that they did
not have joint bank accounts throughout their relationship.

74 Little was led in evidence on behalf of the respondent suggesting that the

relationship had come to an end and that was the common intention of the parties after
the applicant came to reside in [S Street]

75 The applicant did concede in cross-examination that the respondent had

indicated to her initially that she could stay at [S Street] as she “had nowhere to go”. However, it is the common position that she stayed for nearly two years, again, something about which the circumstances were not explored.

76 In any event, given my findings as to credit, I accept the position of the applicant, and find that the parties separated in February 2007.

77 I do not ignore the submission made by Mr Castiglione that Mr Hedges did not

cross-examine the respondent about the nature of the relationship that existed between them between June 2005 and February 2007 or more significantly, about the applicant’s assertions concerning contributions. Mr Castiglione obliquely referred to the “rule” in Browne v Dunn (1893) 6 R 67. Of the rule in Browne v Dunn, Gleeson CJ, in R v Birks (1990) NSWLR 677 at 686 observed:

“It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross- examiner put to an opponent’s witness the matters in respect of which, or by reason of which, it is intended to contradict the witness’ evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16). The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious”.

78 His Honour went on to observe (at 689):

“The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness.”

79 The central object of the rule is one of fairness and in this case no criticism can

be attached to Mr Hedges for failing to put in detail matters relating to the nature of

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the parties’ relationship during the time they were residing together between June 2005 and February 2007. I make that observation for two reasons. First, there was little cross-examination of the applicant about the nature of the relationship between the parties between 2005 and 2007. Secondly, there was little evidence contained in the various affidavits of the respondent contradicting her position taken in her affidavit.

80 Further, the circumstances of the respondent setting out to actively mislead the

Court and my consequential finding of credit, is so fundamental to the issue of credit that I do not consider it necessary for matters to have been put by the applicant’s counsel, as I would not have accepted any uncorroborated evidence given by the respondent, or his father, as prevailing over that of the applicant.

81 This approach, or exception, to the rule in Browne v Dunn has found acceptance by the Full Court of the Family Court in Hendler and Hendler; Moore (1992) FLC 92- 321, where, at page 79,417 the court unanimously found:

“In this case her Honour was aware of the circumstance that Mrs Moore had not been cross-examined and of the consequences which it was submitted followed from that. However, it is clear from the whole of her judgment that she rejected the case put forward by the appellant, the husband and Mrs Moore as unbelievable. Consequently, the trial judge was entitled, as she did, to make findings adverse to the appellant’s case notwithstanding the absence of cross-examination of one of his witnesses.”

Contributions

82 The respondent describes the history of the parties’ relationship as follows, in his trial affidavit of 8 December 2008:

“6	At the commencement of cohabitation the Applicant and I had no real property. Each of us had some furniture of nominal value and I had a motor vehicle.
7	At the date of cohabitation I was self-employed as a consultant.
8	The Applicant was employed as administrative officer with the [a government department].

Financial History - contribution during the de facto relationship from personal exertion

9 After I had worked as a self-employed consultant I joined [a firm] as a stock broker.

10 This came about as I was running a small investment firm and was offered a place with a stock broke (sic) who was interested in acquiring my client base.

11 I worked in the stock brokers until approximately 1999.

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12 In 1999 I left the stock broking firm and worked on an IT project from then until about 2003. The project was to try and float a project to sell [products] to hotels .

13 I left this project in 2003 and became involved in the mining project which was acquired from [another company] which I will detail further in this Affidavit.

14 I continued to be a consultant to [XYZ Pty (sic) Ltd] of which I am a shareholder.

15 At the commencement of cohabitation the Applicant was working as an administrative assistant in [a government department] where she remains to this day.

Contributions as homemaker and parent

16 There were no children of our relationship and we never acquired any real property. Throughout the relationship we rented homes generally in the [suburban] area. The household duties such as cooking, cleaning and so on were roughly equally shared. The Applicant never has obtained a driver's license and therefore I did all the driving but otherwise our non-financial contributions were roughly equal.

17 The Applicant went to work each day in her job at [a government department] and I worked at home.

18. It is probably the case that the applicant bought more groceries than I did but only because she would buy them on her way home for a particular dish that she wished to cook.

19 We paid the rent on alternate weeks and there was never a week when I could not pay the rent.

20 We did not have a very extravagant lifestyle we would go out mostly to the [yacht club] where we were both crew members and have a few drinks after. We crewed on the same boat and this was the man (sic) source of our social activity.

21 At no stage during our relationship did we own any property other than the shares, the subject of these proceedings, but we never had a mortgage or any significant debt and were able to pay relatively rental (sic) until the very later part of the relationship.

22 I can see that the Applicant would have cooked more meals than I did because she had told me that she didn't enjoy my cooking.

23 During the course of cohabitation the Applicant and I shared the living expenses. Normally we would take it in turns to pay rent, utilities and other expenses. Occasionally one of us would pay and the other one would reimburse. I would also pay for entertainment and pay for all transport as the Applicant did not drive.

24 During most of cohabitation I worked out of the home, I did not have an office but I worked out of our rented property at [A Street]. Each day the Applicant would go to work and on her return from work she

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would buy groceries for dinner. I would readily concede that she probably bought more groceries than I did but she did not do so to support, she simply did so because it was convenient for her to buy those things on her way home.

25 The Applicant does not have and has never had a driver's license or driven a motor vehicle.

26 We did (sic) have a very active social life or an extravagant one.

27 However throughout our relationship we sailed as crew members with the [yacht club], we crewed on the same boat for much of the time. I recall there was never a year that I could not afford my own membership of the club and we would generally stay at the club for drinks after sailing, attend barbeques and so on. This would have been the centre of our social life, we did it together and we shared the cost equally.

28 During the course of the relationship this was never a subject of dispute and there was never any issue of either of us supporting the other.

29 When I worked from home, I was home all day. I would do the dishes and some minor housework around the home very early in our relationship it was established that the Applicant was not satisfied with my level of housekeeping and wanted and insisted upon doing it herself. She was somewhat factitious as a housekeeper and whenever I did the housekeeping I was criticised. However this was the Applicant (sic) choice.

30 The Applicant did not welcome company and so apart from our involvement in the [yacht club] we had a limited social life.

31 Whilst the creation of the project of the [XYZ] shares was at times extremely intense and demanding these were condensed in particular periods of time.

32 It would be common for me to have a meeting a day usually with my father, [Mr G Snr] and my father would often visit the home during the day to discuss matters. Our phone bill at home was paid for from the project. However the project did not significantly take me away from home or require greater contribution to household chores by the Applicant.

33 I would admit that the Applicant would have cooked more meals than I did but again this was because the Applicant objected to my cooking and insisted on being the cook herself.

34 At the time that the [XYZ] project got up and running I was looking at probably 25 other public companies with assets which were right for a cheap takeover.

35 This involved meetings and significant research into the various public companies and analysis of what they offered.

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36 The Applicant contributed nothing towards this. She had no skills (sic) set but would have assisted in determining the appropriate "target". She has never been a shareholder until she received the shares that I transferred to her in [XYZ].”

83 The central issue relating to contribution arises with respect to the XYZ shares’ acquisition and the nature of the respondent’s contribution to that acquisition.

84 The respondent says that in 2003 he had some funds available to him, of

approximately $60,000, from an earlier project he had been involved in. He said that he and his father were looking for “likely projects and examining public companies which they may be able to develop”. During his enquiries and examination of “some 25 companies” the respondent says he became aware of [a mining company]. The respondent approached [Mr A], [the company secretary], and after discussion with [Mr A], [the company] engaged [WC] Pty Ltd, a consultancy company of which the respondent was the sole shareholder and director, to raise some capital.

85 The respondent says he was able to raise approximately $200,000. He used

$60,000 of his own funds to acquire shares in [the company] at 2 cents a share. The respondent says that, through his own “research and knowledge” he then became aware that [a holding company] had an interest in a gold project [overseas], the “[CN]” project. However it appeared that [the company], that had taken over [the holding company], was not pursuing a development of the project.

86 The respondent says that he approached the joint venture partner, [OP] Ltd

(“OPL”) (in a joint venture with the holding company) which had a first right of
refusal to acquire the right to develop the project.

87 The respondent approached the directors of OPL with a view to acquiring the right to develop the project.

88 He set out to acquire the shares of OPL, which he says was a private company,

however a public company was required as a vehicle for a public share offering to ultimately develop the project. Ultimately, the mining company acquired all the shares in OPL and a shareholders’ meeting was called to obtain approval to go ahead with the development of the [CN] project. The respondent asserts in paragraph 72 of his trial affidavit:

“I was instrumental in convincing the shareholders at that stage to proceed with the project. At that meeting also the name of the company was changed to [XYZ Ltd].”

89 The respondent then goes on to state that he was instrumental in preparing a Part

A Statement [to do with a takeover] and he says that on an ongoing basis he has been primarily responsible for fundraising for the company. The respondent assumed some active management of XYZ, travelling [overseas] to the project and acquiring support services of a legal, accounting and mining nature. There was also a hostile takeover bid of the company which was successfully avoided.

90 The respondent concludes in paragraph 78 of his trial affidavit:

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“As a result of the development of the whole project of acquiring rights to and developing the project the 2 cents stocks in the company reached a high of $2.20 which would only have been possible through my efforts.”

91 This statement of course is a conclusion and has little evidentiary value without the facts that form the foundation for the conclusion.

92 The respondent also refers in his trial affidavit to an involvement he has in a

further project in the mining industry in a “junior mining company which has seven tenements in Western Australia none of which has yet shown that they have potential”. The company, ABC Ltd, is a company where the respondent holds one million shares and the applicant 54,847 shares. The respondent is not a director of the company, he is not employed as a consultant of the company, nor is he involved in the development of any of the projects or tenements.

93 The applicant recounts the history as follows:

“At the commencement of our relationship I had virtually no assets although I was working fulltime. [Mr G] [the respondent] had a bit of furniture and a car. He was working for [WWI] Pty Ltd in [town]. [Mr G] and [Mr G Snr] were the directors and shareholders of [WWI] Pty Ltd. [Mr G] was assisting with capital raising for [a group] which was a speculative venture in [developing equipment] he was pursuing with [his father]. My understanding was that at that stage he was not getting a regular wage.

From the commencement of our relationship I did not ask for a regular financial contribution from [Mr G] for our living. My recollection is that I paid the rent, utilities, food and supplies and also for some clothes for [him]. We each paid our personal expenses such as our own medical costs, our own cars and haircuts. [Mr G] did not make a regular or substantial financial contribution to our living costs as far as I can recall.”

94 She goes on to recount:

“[The project] failed and in about 1996 [Mr G] started working for
[stockbrokers] as a financial adviser. He left them in about 1998.

[Mr G] and [his father] then considered starting a business of some sort and investigated fish and chip shops and a tea merchant as possible businesses to buy. I was supporting [Mr G] financially at this stage.

...

[Mr G] worked for [GP] for a short time in the city after leaving [the stockbrokers]. This was an investment business of some sort. It was while involved with this company that [Mr G] acquired a lot of equipment which he used in 1998 in the setting up of a business and company called [HN] Pty Ltd which later became [IOS] Pty Ltd. It sought to provide [equipment to] hotel rooms. It was not successful.”

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95 In his trial affidavit the respondent had neglected to mention his involvement in

failed ventures. In response to the applicant’s trial affidavit and in relation to an application for the production of some documents, the respondent swore in his affidavit of 17 December 2008:

“[IOS] is a company which was wound up in or about 2006. It has therefore not produced income tax returns for 2007 or 2008 and so far as I am aware there are no financial statements for any of the years sought. [IOS] was a company which I had used in the past. It started its life as [HN] Pty Ltd which was a technology company that failed. It changed its name to [IOS] and in the process of being a failed company it accumulated capital losses of about $1 million. It had not traded successfully and there were tax losses in it and therefore I transferred shares in [XYZ] into [IOS] Pty Ltd name to take advantage of the tax losses.”

96 It is significant, in my finding, that the respondent omitted to make reference to a venture that had lost “about $1 million”. the work undertaken in the development of the company/XYZ.

97 The respondent gives the applicant no credit at all for any involvement in any of

98 In paragraph 33 of her trial affidavit the applicant said:

“[Mr G] was involved in all these companies (save for [WCN] while we lived together. I contributed to his role and then by helping him essentially as a personal assistant in typing contracts, answering telephones, making travel arrangements, packing his bags, creating spreadsheets and graphs and generally assisting in the businesses. I also supported him financially, personally and by maintaining our home.”

99 The applicant was cross-examined at some length about her claims in this

regard. In particular, it was suggested to her that she did little or nothing which she asserted because she would have been at work full time during the day, which she was. However, her recollection was that she assisted where she could, she typed some Memoranda of Understanding, assisted in mail-outs and basically was supportive of the respondent in the work that he was doing. Mr Castiglione was critical of Mr Hedges in that he did not specifically cross-examine the respondent about paragraph 33 of her affidavit.

100 I repeat my comments about the rule in Browne v Dunn and my significantly adverse findings against the respondent on credit.

101 I accept that the applicant did whatever she could to assist the respondent and

where she was able to offer direct assistance, did so, and otherwise assisted him indirectly in the manner in which she has sworn. What is ignored by the respondent is the extent of the contribution she made prior to the acquisition of the interest in XYZ. Annexed to her trial affidavit the applicant had included a table of comparative incomes based on Notices of Assessment issued by the Australian Taxation Office and income tax returns. The figures for the respondent commence in 1996 and are as follows:

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1996	-	$ 6,150
1997	-	$11,702
1998	-	$19,716
1999	-	$ 6,200

2000–2003 –	no entry, but represented by the respondent as having an
income below the taxable threshold but not otherwise
quantified
2004 -	$25,600
2005 -	$22,005
2006 -	(a) $62,857
(b) $80,000 paid in shares in ABC Pty Ltd
2007 -	$26,160

102 By comparison the income figures for the applicant, which commence from 1998 in the table are as follows:

1998 -	$31,108
1999 -	$34,416
2000 -	$37,004
2001 -	$42,405
2002 -	$44,521
2003 -	$51,868
2004 -	$52,330
2005 -	$53,717
2006 -	$56,910
2007 -	$56,717

103 In his evidence the respondent assured the Court that he had not misrepresented

his income to the Australian Taxation Office and although no quantified figures for 2000 to 2003 inclusive were placed in evidence for the respondent, it would appear that his income during that period was minimal by his own admission.

104 Whilst the absence of the 2000 to 2003 figures prevents a direct comparative

analysis of incomes, from those disclosed the respondent had, as gross cash income

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between 1998 and 2007, the sum of $162,538. I have excluded the shares as they were
a capital settlement and not disposable income.

105 By comparison over the same period the applicant had gross cash income of

$460,996.

106 With the exception of 2006, the applicant’s income significantly exceeded that

of the respondent and given the incomes received by the respondent, particularly between 1999 and 2003 inclusive, there can be little doubt that the applicant was the principal provider for the household and principal financial support. She was clearly offering support to the respondent whilst he explored possible investments in fish and chip shops or at another point, as a tea merchant and whilst he undertook his endeavours which resulted in a million dollar loss. But for the respondent’s final success with XYZ, the contribution made by the applicant far exceeded that made by the respondent.

107 The applicant’s representations in this regard are further reinforced by Annexure

“I” to her trial affidavit, which is a spreadsheet setting out indicative contributions made by her. It is not said to be fully comprehensive, but indicative and was a document about which she was not challenged. The spreadsheet reinforces her representations as to contributions to the household to which I have referred earlier as made in her trial affidavit.

What was the respondent’s “special contribution”

108 Mr Castiglione, for the respondent, referred me to JEL and DDF (2001) FLC 93- 075, particularly the joint judgment of Holden and Guest JJ where at paragraph 152 their Honours concluded:

“It seems to us that the following general principles can be said to arise

from the cases referred to in these reasons, namely:

(a)	There is no presumption of equality of contribution or ‘partnership’.
(b)	There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
(c)	Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
(d)	In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
(e)	The Court will recognise any such special factors as taking the contribution outside the ‘normal range’ in the sense that that phrase was understood by the Full Court in McLay (supra).

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(f)	The determination of an issue of whether or not a ‘special’ or ‘extra’ contribution is made by a party to a marriage is not necessarily dependant upon the size of the asset pool or the ‘financial product’. When considering such an issue, care must be taken to recognise and distinguish a ‘windfall’ gain.
(g)	Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
(h)	It is ultimately the exercise of the trial Judge's own discretion on the particular facts of the case that will regulate the outcome.

(i) In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.”

109 Of note, at paragraph 147 their Honours observed:

“In determining whether ‘special factors’ apply to the contribution of one or other of the parties, the Court must take care to distinguish the situation where the acquisition of wealth was by chance or luck, such as a windfall which was defined in Zyk and Zyk (1995) FLC 92-644 at 82,514 as a ‘... chance or unexpected benefit which people involved neither anticipated nor made any effort towards’.”

110 In McLay and McLay (1996) FLC 92-667, the Court approved of the following passage from the judgment of the trial Judge:

“What I do take their Honours to be saying is that if the existence of ‘special factors’ or the application of ‘special skills’ to the accumulation of assets is established, that may justify the Court considering that contribution through the performance of the role undertaken ‘to be above the normal range’, entitling a party to recognition of an ‘extra’ or ‘special’ contribution. But it is the existence of ‘special factors’ or ‘special skills’ which attracts the added weight to a role which would not otherwise be qualitatively assessed, but left to be considered to be within the normal range.”

111 In Figgins and Figgins (2002) FLC 93-122 in a joint judgment of Nicholson CJ and Buckley J, their Honours referred to the “special contribution” considered in McLay and in JEL and DDF. At paragraph 56 their Honours observed:

“The special contribution referred to in McLay (supra) and other cases clearly refers to some special factor of skill or capacity that produces the result that there is a loading in favour of the party providing it. In JEL and DDF (2001) FLC 93-075 the majority of the Full Court said:

‘However, there are cases where the performance of those roles has what may be described as ‘special' features about it either adding to or

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detracting from what may be described as the norm. For example, in relation to the homemaker role the evidence may demonstrate the carrying out of responsibilities well beyond the norm as, for example, where the homemaker has the responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or cases such as the care of a handicapped or special needs child. On the other hand, in the breadwinner role the facts may demonstrate an outstanding application of time and energy to producing income and the application of what some of the cases have referred to as ‘special skills’.”

112 However, their Honours went on to record, in paragraph 57:

“We are troubled that in the absence of specific legislative direction, courts consider they should make subjective assessments of whether the quality of a party's contributions was ‘outstanding’. It is almost impossible to determine questions such as: Was he a good businessman/artist/surgeon or just lucky? Was she a good cook/housekeeper/entertainer or just an attractive personality? We think it invidious for a judge to in effect give ‘marks’ to a wife or husband during a marriage. We think that this doctrine of ‘special contribution’ should, in an appropriate case, be reconsidered. We think that the decision of the House of Lords in White v White [2001] 1 All ER 1 gives force to these concerns.”

113 That note of caution appears to have been adopted by Thorpe LJ in the decision

in Lambert v Lambert [2002] EWCA Civ 1685, [2003] 4 All ER 342 at 359 where
Thorpe LJ observed:

“45. Having now heard submissions, both full and reasoned, against the concept of special contribution save in the most exceptional and limited circumstance, the danger of gender discrimination resulting from a finding of special financial contribution is plain. If all that is regarded is the scale of the breadwinner's success then discrimination is almost bound to follow since there is no equal opportunity for the homemaker to demonstrate the scale of her comparable success. Examples cited of the mother who cares for a handicapped child seem to me both theoretical and distasteful. Such sacrifices and achievements are the product of love and commitment and are not to be counted in cash. The more driven the breadwinner the less available will he be physically and emotionally both as a husband and a father. There is also some justification in Mr Mostyn's emphasis on the extent to which the homemaker frequently sacrifices her potential to generate assets by undertaking the domestic commitment to husband and children. At the same time she risks the outcome of failure and so earns her entitlement to share in the successful outcome.”

114 Lord Justice Thorpe considered the relevant Australian authority and clearly had regard to the decisions of the Full Court of the Family Court to which I have referred.

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115 I respectfully agree with his observations, however, as yet, the Full Court has not reconsidered its approach as invited in Figgins (supra).

116 The state of the law as it now is presented to me is that it is open to me to find

that special circumstances or a special contribution may exist such as to weight the
husband’s contribution.

117 However, that is not a conclusion that can be necessarily based upon my subjective assessment of the parties, but rather one that is to be founded in evidence.

118 There is little doubt in this case that the husband pursued his interest in finding a

vehicle to be utilised hopefully to generate wealth. He had, until the acquisition of the shares in the mining company, been generally unsuccessful in that pursuit. During the period of the parties’ relationship and at a time when the respondent was not successful in his ventures, he was supported throughout, both financially and also in his efforts by the applicant.

119 I am left with no doubt at all that the applicant committed fully to the

relationship with the respondent whatever skills she could bring to bear to his pursuits, as well as supporting the household whilst they were pursued. Of note, the applicant herself had previously worked for investment bankers and she had an unchallenged “understanding [of] a lot of what [the respondent] and [his father] were involved in”.

120 The respondent seeks to hold himself out and above the involvement of any

other person or persons or market forces upon the growth, and increase in value, of the
shareholding.

121 The difficulty that the husband faces is that there is no evidence other than his

own assertions that supports his conclusion that “as a result of the development of the whole project of acquiring rights to and developing the project that two cent stocks in the company reached a high of $2.20 which would have only been possible through my efforts”.

122 One would have reasonably expected some evidence supporting such a lofty

conclusion.

123 Although Mr Castiglione did not ultimately rely on the affidavits of the

respondent’s father, given the father’s involvement in a deliberate attempt to mislead the Court, little weight could have attached to any support from that source in any event. The affidavit of Mr A was almost entirely drawn in a form to which no weight can attach nor, indeed, is admissible. Mr A, at best, gives opinion evidence which is not supported by any qualification for him to do so.

124 As Mr Hedges observed by reference to JEL and DDF (supra) and the nature of the evidence given in support of a claim for a special contribution, that here, given the claims made by the respondent, some evidence should have been led that was qualified and admissible.

125 Notwithstanding the abhorrence indicated by Mr Castiglione at any suggestion

that there might be an element of “luck” in the endeavours of the respondent, clearly

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there was and clearly there were forces acting beyond which the respondent had
control, for example, the reaction of investors in the Stock Exchange.

126 Whilst the respondent puts forward as examples of his contribution, such as the

completion of documents for the Australian Stock Exchange, it would seem that he presumes there is some judicial knowledge about whether or not that requires a special skill. Surely, logic would dictate that that, if nothing else, is an issue about which qualified and admissible evidence could have been led.

127 I have no doubt that the respondent worked diligently and hard in pursuit of

wealth. He was most fortunate in that he had a partner who was prepared to support him through the times when he was unsuccessful and also prepared to support him both financially and non-financially in the pursuit of that success, equally, she is entitled to share in the benefits of that success.

128 I reject the assertion of behalf of the respondent that his contribution was special

or extraordinary such as to take it into that category of cases contemplated by McLay
(supra) and JEL and DDF (supra).

129 Further, I conclude on the evidence before me, that the contributions of the parties were equal.

Section 205ZD(3) factors

130 The common position of each of the parties was that there should be no

adjustment for the factors prescribed in s 205ZD(3). Whilst the applicant’s position was that if I found less than equal contribution, then I should consider some adjustment under the prescribed factors, having found contribution as being equal, I do not need to consider the applicant’s submissions in that regard.

131 The respondent identified as a relevant factor the disparity in the parties’

superannuation balance, but did not seek to draw any conclusion that there should be an adjustment based on that difference, either in his trial affidavit or Papers for the Judge at trial. Accordingly, no adjustment is made for the factors so prescribed, although I have regard to the differing superannuation balances of the parties in my conclusion to these reasons.

Conclusion

132 The parties in this case shared a 13 year relationship. Overall my finding is that,

through each of their respective abilities the parties made an equal contribution to the
asset pool.

133 The result of my finding in this regard will have the effect of seeing each of the

parties at the conclusion of this relationship having a gross wealth of slightly in excess of $7 million. Given the enduring support both financial and non-financial the applicant provided to the respondent in his endeavours, I am satisfied that it is just and equitable that the parties should share the rewards equally. I rejected the argument in favour of “special contribution” for the reasons that I have given, however, it is trite to

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observe that whatever skill set the respondent brought to this relationship, he was dependent upon the skill set of the applicant for a significant portion of the relationship to provide ongoing and secure support for the parties of a financial nature, as the primary homemaker and also what non-financial contribution she could make out of her interest and with her skills to the work undertaken by the respondent. The endeavours and commitment of the parties finally bore fruit and it is, in my finding, just and equitable that they share those fruits equally.

134 Given that these proceedings are under the Family Court Act 1997, superannuation is not treated as property. Since separation the respondent has made a contribution to his superannuation fund, although that has been added back into the pool of property for distribution between them. Net of that contribution the respondent’s superannuation was estimated to have a value of $81,000 and the applicant’s $148,720. Given the overall financial positions of the parties I do not consider it necessary that there be any adjustments, taking into account the relatively minor disparity between their superannuation positions to achieve a just and equitable result. Further as I have observed no such adjustment was sought on behalf of the respondent, having regard to the s 205ZD(3) factors, although identifying the difference, nor any submission made on his behalf as to superannuation resources in the event that I found equality of contribution.

135 The applicant holds separately from the respondent 233,462 shares in XYZ Ltd

and 54,847 shares in ABC Ltd. To achieve equality between the parties’ respective shareholding in XYZ, i.e. such that each of the parties hold 2,139,114 shares (there being an odd number of shares, one of the parties will receive 2,139,115 shares) of the joint shares, 1,905,652 will need to be transferred to the applicant.

136 To achieve an equality in the ABC Ltd shares, of which the applicant holds

54,847 and the respondent 1,000,000, the respondent will need to transfer to the applicant 472,576 shares, again there being an odd number, the respondent will hold one share greater than the applicant. As to the balance of property, including sums notionally added back into the pool of assets, the applicant holds property with a total value of $91,828 less capital gains tax payable of $6,400, giving her a total holding of $85,428 excluding the shares.

137 The property held by the respondent, excluding the XYZ Ltd and ABC Ltd

shares, amount to $4,088,417, against which there is a capital gains tax liability which is yet to be properly quantified. I propose to deal with the issue of the respondent’s capital gains tax liability separately as there appears to be some divergence between the parties as to what it will be, although it appears to be generally accepted to be in the range of $440,000 and $485,000.

138 To equalise the assets other than the shareholdings, the funds standing to the

credit of the respondent in the Westpac Bank, [branch], being the proceeds of the sale of some XYZ shares, will need to be divided as to the applicant $2,001,494.50, together with one half of any amount by which the balance exceeds the sum of $3,791,367 at the point of distribution, with the balance going to the respondent.

139 Given that the respondent’s capital gains tax liability is yet to be assessed I

propose to order that the applicant contribute one half of the assessed capital gains tax

[2010] FCWA 33

liability upon the sale of the shares, the proceeds of which I have ordered to be divided between the parties, upon proof of the assessment and that pending the assessment and payment by the applicant, that she be restrained from dealing with an amount of $250,000 of the sum payable to her until such time as the capital gains tax liability has been assessed and she has paid one half thereof.

Proposed orders

1. Within seven days of the date of these orders the respondent, [Mr G], do transfer to the applicant, [Ms B] 472,576 shares in ABCs Ltd and pay to the applicant the sum of $2,001,494.50 together with a sum equating to one half of the difference between the sum of $3,791,367 and the balance standing to the credit of the respondent in Westpac [Branch] Account No xxxx (being the proceeds of the sale of the XYZ shares) at the date of payment.

2. The parties do all such acts and execute such documents as shall be required to divide the jointly held XYZ Ltd shares between them such that the applicant shall receive as her sole property absolutely 1,905,652 and the respondent the balance.

3. Upon the respondent being assessed to pay capital gains tax on the sale of the XYZ shares, the proceeds of which have been distributed according to these orders, the applicant shall pay an amount equal to one half of the assessed capital gains tax to the intent that each of the parties shall contribute jointly and equally thereto and as security for the payment the applicant is restrained and an injunction is hereby granted restraining her from disposing of the sum of $250,000 of the sum payable to her pursuant to these orders pending the assessment of, and payment of, capital gains tax on the said sale.

4. Any interest that the respondent may have in any other chattels, assets or resources in the name of the applicant shall vest in the applicant absolutely.

5. Any interest that the applicant may have in any other chattels, assets or resources in the name of the respondent shall vest in the respondent absolutely.

6. There be liberty to the parties to apply for consequential orders.

7. Subject to the determination of any application for costs arising from these proceedings the application and response do otherwise stand dismissed.

I certify that the preceding [139] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate