Babrow and Rackley - [2010] FamCA 508

FAMILY COURT OF AUSTRALIA

BABROW & RACKLEY

[2010] FamCA 508

FAMILY LAW – PROPERTY – Just & equitable – Add-backs – Tracing

Family Law Act 1975 (Cth) ss 75(2), 79(1), 79(4)

Baldachino & Hanas [2010] FamCA 234
C & C [2005] FamCA 429
Cabbell & Cabell [2009] FamCAFC 205
Farnell & Farnell (1996) FLC 92-681
Gollings & Scott (2007) FLC 93-319
Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144
Miller & Miller [2009] FamCAFC 121
NHC & RCH (aka Chorn & Hopkins) [2004] FamCA 633
Norman & Norman [2010] FamCAFC 66
Omacini & Omacini (aka AJO & GRO) (2005) FLC 93-218
Pierce & Pierce (1999) FLC 92-844
Pittman & Pittman [2010] FamCAFC 30
Townsend and Townsend (1995) FLC 92-569

APPLICANT:

Mr Babrow

RESPONDENT:

Ms Rackley

FILE NUMBER:

CAC

1164

2008

DATE DELIVERED:

24 June 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATES:

11 – 12 June 2009 22 October 2009

19 – 20 November 2009
Written submissions of the Applicant 19 November 2009
Correspondence from the wife received by the Court on 11 May 2010
Correspondence from the solicitors from the husband received 3 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D. Farrar & Mr G. Howard (22 October 2009 only)

SOLICITOR FOR THE APPLICANT:

Farrar Gesini & Dunn

SOLICITOR FOR THE RESPONDENT:

Self‑represented litigant

Orders

IT IS ORDERED THAT:

Within seven (7) days, the husband and the wife shall do all things necessary to cause the proceeds of the sale of the property located at H in the Australian Capital Territory, held by the joint conveyancing solicitor Colquhoun Murphy, to be paid to the husband and the wife as to the following amounts:
(a)The sum of two hundred and twenty five thousand, seven hundred and twenty seven dollars ($225,727) to the husband; and
(b)The sum of ninety nine thousand, three hundred and sixty nine dollars ($99,369) to the wife; and
(c)The balance of any interest which has accumulated on the sum of $325,096.25 which was originally held on trust will, after payment of the sums identified in (a) & (b) above, be paid to the husband and the wife in equal shares.
Service of this order by the husband’s solicitors on Colquhoun Murphy will constitute sufficient authority to make the necessary payments identified in order (1).
Within thirty days (30), the husband and the wife shall do all things and sign all documents necessary to sell the jointly owned A timeshare and to that end, the wife shall provide her written authority for the husband to advertise the timeshare for sale on the internet and the wife shall pay the husband fifty per cent (50%) of the costs of sale including the advertising fee from her share of the sale proceeds.
(a)Upon the sale of the A timeshare, the husband the wife shall cause the balance of net proceeds to be divided equally between the husband and the wife .
If either party should fail within thirty (30) days after the periods stipulated in Order (1) and (3) above (on the certification in writing by either party or by their legal representatives that the other party has so failed) to execute (or sign) any document or to perform any action required in relation to such sale(s), then pursuant to s 106A(1) of the Family Law Act 1975 (Cth) a Registrar of the Family Court of Australia is appointed to sign such documents or perform such action in the stead of the party that has failed to comply.
Within seven (7) days the husband will make available for collection by the wife at her expense, the following items:
(a)
(i)Black Kinetix pants;
(ii)2 x grey book cases;
(iii)6 x boxes of books;
(iv)2 x Merkabas – red and gold;
(v)Conversations with God book; and
(vi)Conversations with God CD.
(b)If the husband has the following items, he shall make them available to the wife to collect with the items referred in (a) directly above:
(i)Brown blanket;
(ii)Coloured mattress;
(iii)CDs (Celestial Prophecies, Queen and CD cover to Goodbye Vietnam) and case cover Wet Skin Material;
(iv)Other books belonging to the wife that were at P Corp prior to separation;
(v)Three Jain books; and
(vi)Pindari Herb Farm notes.
Otherwise, each of the parties be and is hereby declared to be the owner both at law and in equity of all the property in his or her possession or control, including their respective superannuation interests. To this end, the husband and the wife shall, in their capacity as the trustee of the E Superannuation Fund, do all things and sign all documents necessary within fourteen (14) days of the date of these Orders to cause and enable the husband to rollover his membership interest in the E Superannuation Self‑managed Fund into another complying superannuation fund.
That all extant applications are discharged, save as to the any application the parties may wish to make in relation to the question of costs. To this end, the parties will file on or before 4.00 pm on 8 July 2010 written submissions about the question of costs. It is noted that this discrete component will be determined by his Honour in Chambers after considering the written submissions.
The matter is otherwise removed from the Pending Cases Inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1164 of 2008

MR BABROW

Applicant

And

MS RACKLEY

Respondent

REASONS FOR JUDGMENT

Introduction

This was an application for final orders by the husband for the alteration of property interests between the parties to the marriage,[1] pursuant to s 79(1) of the Family Law Act 1975 (Cth). The respective minutes of orders sought by the husband and the wife appear at Endnote 1[1] and Endnote 2.[2] This matter primarily was a dispute about the contributions of each of the parties at the commencement of, and during, the relationship, as well as about allegations of pre‑emptive distributions of property which might be added back into the property pool.
[1] I refer to the applicant and respondent respectively as husband and wife, despite the fact that a divorce order has been issued by the Federal Magistrates Court of Australia and become effective. I use these terms for convenience only and do not intend to deliberately offend the parties by doing so.

Brief Background

Without intending to be exhaustive, what follows is a brief background about the parties and the history of their relationship.
The husband was born in 1968 and is presently aged 41 years. The wife was born in 1962 and is presently aged 47 years.
The parties first met in October 1998 and commenced co-habitation in November 1998. The parties were engaged in February 2001, married in December 2001 and separated on 28 May 2007, albeit they did continue to reside at their property in H, Australian Capital Territory (ACT) until 22 July 2007. The total duration of the relationship from co-habitation to separation was approximately eight and a half years (including approximately a five and half year marriage).
There are no children of the relationship.

Relevant procedural history

The proceedings were initially filed in the Federal Magistrates Court of Australia on 9 October 2008. His Honour, Brewster FM then transferred the proceedings on 15 December 2008 to the Family Court of Australia. His Honour gave directions on that date requiring the wife to provide several documents to the husband’s solicitors for inspection.
The matter next came on before me on 26 March 2009, where the husband’s solicitor handed up a list of issues and a chronology. I then gave directions for the parties to collaborate in producing a joint list of assets and liabilities filed by the husband on 13 March 2009. In my orders of 26 March 2009, I made a number of notations regarding the various items of property, following the positions articulated by each of the parties at the hearing on that date (see Endnote 3[3]).
At the next hearing on 6 May 2009, I ordered that the parties accept the nomination of the President of the Real Estate Institute of the ACT as to an agent to be appointed on their behalf for the purposes of the sale of the H property. I also made orders about who would be the joint conveyancing solicitor, an order for the costs to be equally paid by the parties for all necessary building and inspection reports and for the conveyancing solicitor, and that the wife would maintain the property to a reasonable standard including maintaining the lawns and gardens and the payment of any electricity and gas expenses incurred in relation to her use of the property until settlement.
The husband filed and relied on affidavits from: Mr S, filed in Court on 12 June 2009; his father, filed 1 June 2009; and Mr H, filed 25 May 2009. The wife declined to cross‑examine any of these witnesses.
The time allocated for hearing on 11 and 12 June 2009 was insufficient to accommodate the cross-examination of both the parties. Consequently, I adjourned the matter to the next available date to accommodate the wife, the husband and the Court (being 22 October 2009). On 12 June 2009, I ordered that the parties do all things necessary to effect the sale of the H property. I also ordered that, in the event that the H property settlement occurred prior to the next time the matter came on before the Court, each party was to obtain an interim distribution of $60,000 from the proceeds of the sale (pending the further determination of matters between the parties when it was finalised).
The matter was next heard on 22 October 2009. On 12 October 2009, the wife filed a further affidavit (which had many annexures, filling two lever‑arch folders). Despite the objection from counsel for the husband, I admitted that affidavit into evidence as an informal form of re‑examination on behalf of the wife. The proceedings were consequently adjourned until 19 November 2009 to enable counsel for the husband to adequately finalise cross-examination of the wife on any issues arising from the new material. The matter continued on to 20 November 2009 where the wife gave final submissions. I reserved the costs of the proceedings of 22 October 2009 and of the adjournment caused by the late filing of the wife’s further affidavit.

Chronology

The parties first met in October 1998 and commenced co-habitation in November 1998. The wife stated (and the husband disputed) that the husband was in debt of approximately $20,000 at the time of co‑habitation. The wife owned a property in R, ACT unencumbered, which was sold on 14 July 1999 apparently for $129,500. The husband assisted in the preparation of the sale of that property, including undertaking various cleaning and gardening works and advertising the property for sale. Both parties owned furniture and household effects.
The parties jointly purchased a property in H, ACT in April 1999 for $250,000. The purchase was financed by a joint bridging loan of $80,000 obtained in April 1999 and a home loan of $200,000 obtained in April 1999. The home loan was in the husband’s name, however, the wife stated that the loan was guaranteed on the security of the R, ACT property. The bridging loan was repaid on 14 July 1999 following the sale of the R, ACT property. Approximately $15,000 was spent by the parties developing and maintaining the property.
The husband stated that at 15 April 1999 he had approximately $25,586.40 in an interest saver account (which included $10,000 lent by the husband’s father). The wife disputed that these were the husband’s savings. The wife agreed that the husband owed approximately $10,000 to his father, but disputed that the husband paid it back in September 1999 with his own funds, rather than from joint funds.
The parties were engaged in February 2001 and married in December 2001.
The parties refinanced in June 2000 with a joint home loan of $193,000, the husband states with credit of $15,000 being paid on 30 May 2000. Part of the refinancing allowed for various investments to be made by the parties including:
a)the joint purchase of Timbercorp Woodlots (6 in total) in June 2000 and June 2001 (including the payment of associated annual expenses);
b)various transfers into superannuation funds and payments of insurance and taxation;
c)the purchase of three properties in New Zealand, which were later sold. The husband stated that the proceeds were later deposited back into the joint loan account to reduce the liability. The wife stated that these properties were sold at a loss; and
d)the purchase of an A timeshare in May 2005 (including the payment of associated annual expenses).
The parties each gave contradictory evidence about the level of their respective incomes during the relationship, each stating that they worked full-time in contrast to the part-time work of the other and that they earned more than one another at various points in the relationship. The husband stated that he used his salary to pay the home loan repayments, and that over the course of the relationship he deposited $516,968 into the parties’ joint accounts, and that he had a total taxable income of approximately $560,000. The wife acknowledged in her affidavit filed 12 October 2009 that the total the husband probably contributed financially over the course of the relationship was $383,323.[2] The husband acknowledged that the wife apportioned some of her income earned from her business to the husband for income splitting purposes. The husband stated that the wife’s known taxable income during the course of the relationship, including tax refunds received by the wife,[3] was approximately $134,112.
[2] Affidavit of the wife, filed 12 October 2009, [20].
[3] It should be noted that both parties have alleged significant non-disclosure of documents throughout these proceedings: see Affidavit of the husband, filed 25 May 2009, [45], [55], [60], [110] to [122], [145]; Affidavit of the wife, filed 12 October 2009, [58] to [60].
The husband stated that he made 21 payments into the investment loan account totalling $50,000 between 6 October 2004 and 23 December 2005. The husband stated (and the wife denied) that the wife withdrew $30,000 on 23 June 2003. The wife countered that the husband withdrew this sum “accidentally.”[4]
[4] Affidavit of the wife, filed 12 October 2009, [19(b)].
The wife stated that she supported the husband financially between December 2003 and March 2006, and that the husband supported the wife between March 2006 and May 2007. The wife firmly believes that the taxable income claimed by the husband is not correct. The wife denies that the husband ever received any tax refunds, or that such refunds were deposited into the joint account. The wife stated in her affidavit filed 12 October 2009:[5]
…it should be noted that we adopted a policy of incoming splitting to reduce our taxable income and support each other’s businesses eg my $70,000 contribution to his business in 2004 (annex K refers). As such, much of the taxable income that [the husband] refers to was on paper only and does not reflect actual financial contributions to the household or the mortgage. Of note is the fact that from December 2003 to March 2006 [the husband] brought no money into the household, despite having a taxable income on paper. Due to the complex nature of our business structures, I do not believe our taxable incomes are a reliable means of showing our contributions to household expenses and mortgage.
[5] Affidavit of the wife, filed 12 October 2009, [21(b)].
The husband stated that the wife made unilateral draw‑downs on behalf of the husband as deposits into superannuation funds, including draw‑downs of $35,000 on 30 June 2004 and $15,000 on 30 June 2005. The wife maintained that this money constituted an interest-free loan that the husband was to repay. The husband stated that he labelled them as “superannuation” deposits for banking purposes to satisfy the wife. The wife maintained that it was to “render them legal business deductions for taxations purposes.”[6] The wife also stated that she deposited $95,000 from her business earnings into various superannuation accounts, and she denied the suggestion that the money has withdrawn from the joint account to cover superannuation contributions on her behalf.
[6] Affidavit of the wife, filed 12 October 2009, [28].
The husband sold his interest in a design company at the end of 2002, and he received dividends from the sale of the business until the end of 2003. The total amount received by the husband during that period was approximately $112,532.50. The husband stated that he deposited $53,599.16 into the joint home loan account.
The husband operated another design business from the H property between November 2002 and June 2004.[7] The wife asserted (and the husband denied) that the husband drew down $14,500 from the joint account to establish the new business. The wife operated a health business also from the H property, where the wife conducted various health-related services.
[7] At the directions hearing on 26 March 2009, the husband asserted that the value of this business was approximately $500. It was noted by me that the value of the business would not be an item of dispute in the finalisation of the proceedings before the Court unless the wife had appropriate evidence of its value (see Orders of 26 March 2009, 2(f)).
The husband stated that he significantly contributed to the graphic design and advertising of the wife’s business and its administration, including answering email and telephone enquiries and maintaining a website and assisting the wife with her workshops. The husband asserts that he was unable to earn as much as the wife during the period of the marriage as he was significantly contributing “to the development and growth of [the wife’s] business.”[8] The wife acknowledged that the parties provided support to one another (and that she provided free [health services] to the husband). However, the wife argued that their respective contributions to each other’s businesses were not special, rather were indicative of the things “one might expect a husband and wife would do”[9] to support each other.
[8] Affidavit of the husband, filed 25 May 2009, [130].
[9] Affidavit of the wife, filed 12 October 2009, [33].
The husband stated that renovations were done to the H property to accommodate a component of the wife’s business (which required additional plumbing). The wife downplayed the improvements in terms of her business; rather she maintained it increased the value of the H property generally.
Both parties contradicted each other about the extent of their respective household contributions. Both parties maintained they were primarily responsible for maintaining the household. The husband stated that the wife was absent regularly on training courses and workshops interstate. The wife stated that she undertook bookkeeping duties for the husband’s business because she had superior skills because of her prior work experience in the banking industry. The husband worked between 9.00 am and 6.00 pm, the wife worked between 8.00 am and 9.30 pm.
Just prior to separation in May 2007, the parties sold a Nissan Navara vehicle for approximately $5,500. The husband denied the wife’s statement that this money was put towards joint expenses, rather he alleged the wife has retained this sum for her personal benefit. In January 2007, the wife sold a Mazda Tribute vehicle for $16,500. The husband asserted that the Mazda Tribute was paid out in October 2005 from joint funds. The wife stated that the car was a business asset. The husband stated that he presently leases a Subaru Forrester X vehicle and that there is no equity in the vehicle.

The husband stated that there was approximately $40,000 in cash kept in the H property just prior to separation, which was kept in separate “envelopes/wallets.”[10] The husband asserted this was withdrawn from his business account. The wife stated that this amount was from her business earnings from a Mr HM, who made out cheques to the wife personally, rather than to the business. The wife asserted that the money was deposited into the joint account and was then withdrawn and kept as cash for joint personal spending.
[10] Affidavit of the husband, filed 25 May 2009, [72].
In February 2007, the H property sustained water damage from a storm. Consequently, the wife initiated an insurance claim with CGU Insurance Limited (‘CGU Insurance’) and received approximately $114,000. The wife acknowledged that this amount has been “disbursed”[11] and “returned to [her] business.”[12] The husband stated that approximately $1,039.99 was received by the wife following her cancellation of the CGU Insurance policy. The wife admitted that she did cancel the policy but did not receive any refund.
[11] Affidavit of the wife, filed 12 October 2009, [40].
[12] Ibid.
The husband stated that the wife withdrew $63,000 from her personal bank account on 28 May 2008 and $21,783.87 were deposited on 13 February 2009 into her business account, which were subsequently withdrawn on 13 and 16 February 2009 respectively ($10,000 and $11,783.85). The husband stated that a further deposit was made on 23 February 2009 of $36,996.45, which was subsequently withdrawn on 26 February 2009.
The wife reported a burglary to the H property on 9 March 2009. The wife revealed in her cross-examination that she had consequently received the sum of $23,435 from Allianz for the items that had been stolen.
The wife continued to live in the H property from the time that the husband left on 22 July 2007 until the property was sold. Settlement was effected on 26 October 2009. During that period, the wife maintained the costs associated with the property during this period.[13] The husband lived in rental accommodation since he left the matrimonial home and he stated that he incurred expenses totalling $18,315 since that time.[14]
[13] Exhibit ‘H8’.
[14] This was updated by his oral evidence on 19 November 2009 to a figure of $24,398.
The husband stated that the wife transferred the sum of $20,000 to Ms M. The wife stated that she borrowed $20,000 in order to make a superannuation contribution in 2006 and then she repaid the money to Ms M. Ms M did not file an affidavit on behalf of the wife, nor was she called as a witness.
The husband re-partnered at the end of 2007, however, there is no evidence before the Court about the financial and non-financial circumstances of this new relationship.
The wife stated that she ceased trading her business on 4 December 2008 and “liquidated”[15] her business equipment and supplies. The husband stated the liquidation resulted in proceeds of approximately $100. The husband asserted (and the wife agreed) that the wife retained the proceeds of a joint account of approximately $9,610.61. The wife, however, stated that $9,372.85 of this sum comprised a tax refund she received for the year ending 30 June 2006.
[15] Affidavit of the wife, filed 12 October 2009, [52].

Findings of credit

The answers given by the wife during the course of cross-examination were non-responsive, appeared to be evasive, possibly were based on advice she had received from someone in whom she had trust but who was not qualified and who served in the end only to confuse, rather than to enhance her position.
Her evidence on nearly every point about her expenditure of money was unconvincing. She had been ordered and invited to provide evidence in support of many of her contentions on previous occasions.[16]
[16] See the orders of Deputy Chief Justice Faulks of 26 March 2009annexed to this Judgment.
When she finally provided an affidavit with numerous annexures, the annexures were not necessarily admissible as evidence and even to the extent that they became part of the evidence almost by default, the weight to be attributed to some of them because of their nature (self-serving statements, invoices without any evidence of payment and so forth) could not be great.
I do not accept unreservedly all the evidence given by the husband either. He appeared confused about the parties’ financial dealings, had substantially abdicated responsibility for the finances of the parties to the wife and, as a consequence, appeared to have little understanding of the result.

Relevant Law

The law in relation to alteration of property interests is relatively well settled, and the following (so-called) four stepped approach is to be followed:
a)Identify and value the property, assets, financial resources and liabilities of the parties as at the date of the hearing;
b)Identify relevant contributions and assess them within the meaning of s 79(4)(a) to s 79(4)(c) of the Family Law Act 1975 (Cth) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties;
c)Consider relevant matters referred to in s 79(4)(d) to s 79(4)(g) of the Family Law Act 1975 (Cth); and
d)Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.[17]
[17] Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144, 78,386 (Nicholson CJ, Ellis & O’Ryan JJ) (‘Hickey’).

The law with respect to “add-backs”

As I have stated in a number of other Judgments,[18] it is a reasonably clear proposition that the value of the contributions to the property of the parties, as well as the value of property itself, is ordinarily taken as at the time of the hearing.[19] There is also now a substantial line of authority that property that has been pre‑emptively taken by a party to the diminution of the total property might properly be the subject of an add‑back on the basis that this is property already received by a party or which constitutes, in effect, a premature or pre-emptive distribution in favour of that party (to the detriment of the other party). A number of exceptions have been made to this proposition. In NHC & RCH,[20] the Full Court of the Family Court stated:
[24] We will refer again later in these reasons to the decision in Townsend,[21] but we would in the present context draw attention to the following observations by later Full Courts:
2.11 There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. (Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ.)
46. Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. (Cerini [1998] FamCA 143, 8 October 1998, per Nicholson CJ, Ellis, Kay JJ.) (Footnotes of the Full Court.)
[18] See, for example, Baldachino & Hanas [2010] FamCA 234 at [39].
[19] See Hickey above and the obiter dicta comments of the Full Court of the Family Court in Pittman & Pittman [2010] FamCAFC 30 (Bryant CJ, Finn and Thackray JJ) at [52]: “Having regard to the provisions of ss 79(4) and 75(2), contributions (whether they be to property or to the welfare of the family) are usually only considered up to the time of trial.”
[20] NHC & RCH (aka Chorn & Hopkins) [2004] FamCA 633 (Finn, Kay and May JJ).
[21] Townsend and Townsend (1995) FLC 92-569 (Nicholson CJ, Fogarty and Jordan JJ).
In addition to referring me to the Full Court authorities in Gollings & Scott[22] and Omacini & Omacini[23] – both cases of which concerned substantial similar statements about the law on add-backs – counsel for the husband helpfully referred me to the decision of the Full Court in Miller & Miller,[24] which involved a husband receiving an insurance payout under an income protection policy. The Full Court (Strickland J) relevantly stated:
[77]…I consider that given that if that money had still been there it would have been included in the net asset pool, the husband’s use of it was a “premature distribution” of an asset of the parties (OMACINI, supra). It is in that category because both parties have contributed to it and it would have otherwise been available for distribution and it is not to the point for this purpose that the event which actually led to the amount was the husband’s heart attack suffered after separation.
[78] Thus the amount should have notionally been added back to the asset pool unless the husband could satisfy the Federal Magistrate that it was spent for example “on meeting reasonably incurred necessary living expenses”. However, the husband clearly did not satisfy that onus and in effect the Federal Magistrate so found. Thus instead of making assumptions about what the money could have been used for in the absence of proper evidence the Federal Magistrate should have proceeded to notionally add it back. (Footnotes of the Full Court).
[22] Gollings & Scott (2007) FLC 93-319 (Finn, Kay & Boland JJ).
[23] Omacini & Omacini (aka AJO & GRO) (2005) FLC 93-218 (Holden, Warnick & Le Poer Trench JJ).
[24] Miller & Miller [2009] FamCAFC 121 (Strickland J).
In essence a tracing exercise is necessary. It can be seen from Strickland J’s comments that the party who asserts that they spent the money on reasonable living expenses bears the onus of establishing that this was indeed the case. To the extent that money which exists at the time of separation is expended by the parties in reasonable living expenses for a party, even if the other party did not have access to the funds, that money ought not necessarily to be the subject of a notional add‑back.

The property, assets, financial resources and liabilities of the parties

In this matter, the property of the parties was mostly identifiable. The more contentious questions to be determined by me concern a number of add‑backs which I discuss below.
Counsel for the husband withdrew claims in relation to the wife’s jewellery, an antique bible purportedly given away by the wife and the disposal of the wife’s business equipment in respect of the entity known as “W Centre.” Neither party has put any figure on furniture and effects which I could in any way take into account. I have otherwise noted that there should be an add-back for some part of the CGU Insurance claim for the wife, on the basis that there is no asset against which the expenditure of funds could reasonably be applied (see Judgment below). It was also agreed by the parties that the A timeshare investment was to be sold and the proceeds divided in the proportion I consider to be just and equitable in line with the ultimate orders I am to make.
Counsel for the husband handed up written submissions on 19 November 2009 which identified the non-contentious assets of the parties:

Non-contentious Assets

Value

Proceeds of sale from H property (interim property distribution)to the husband

$60,000

Proceeds of sale from H property (interim property distribution) to the wife

$60,000

Balance of proceeds of sale held in Trust

$325,096.87

Husband’s superannuation

$93,723

Wife’s superannuation

$133,463

Add-backs

The contentious items of property which require determination by me as to whether they should be added back in to the total property pool are:
a)$116,005.92 received by the wife from CGU Insurance;
b)$40,000 in cash the husband states was retained by the wife at separation;
c)$20,000 transferred from the wife to Ms M;
d)$29,560 in the wife’s ANZ Bank Business account at separation;
e)$1,777 in the wife’s ANZ Bank Personal account (exclusive of a taxation refund);
f)$9,601.61 and $58.60 ($9,660) held in two joint NAB Bank accounts at separation;
g)$5,250 proceeds from the sale of the husband’s car the husband states was retained by the wife;
h)$23,456 insurance money received by the wife from Allianz Australia Insurance Limited (‘Allianz Insurance’);
i)$1,360 paid by the husband’s father to the husband as a repayment of a loan after separation; and
j)$11,000 net proceeds from the sale of a Mazda Tribute motor vehicle by the wife.

CGU Insurance money

To say that this issue is complicated is an understatement. Certain things are clear. The former matrimonial home was damaged by water in February 2007. It is common ground that the handling of the insurance claim was conducted by the wife. She stated in her affidavit that “[t]he sum received from the insurance company was approximately $114,000.00 which [she] subsequently disbursed.”[25] It appears from Exhibit ‘H1’, which was a letter from CGU Insurance in response to a written request for information, that the actual amount sent by the insurance company to the parties was $116,005.92. This figure does not accord precisely with the amount asserted by the wife referred to above or to the amount that is set out in annexures ‘W’ and ‘X’ to her affidavit filed on 12 October 2009. However, in the circumstances, I accept that the figure received was $116,005.92.
[25] Affidavit of the wife, filed 12 October 2009, [40].
As set out above, it is also admitted by the wife that she received the money and that she disbursed it (to adopt her term). In the ordinary course of events, this is money which ought to have formed part of the pool of property of the parties and accordingly for the purposes of calculation of division of property between the parties, should be part of the pool and treated (again in the ordinary course of events) as a pre-emptive unilateral distribution of that property subject to a number of qualifications.
Accordingly, in light of NHC & RCH, if the money received by the wife had been disbursed in payment of joint expenses for both parties, or had been applied for reasonable living expenses, then the so-called “add-back” should be reduced accordingly.
The situation in this matter is somewhat complicated by the fact that as appears from annexure ‘X’ to the wife’s affidavit of 12 October 2009, after the parties separated, she expended the sum of approximately $20,397 on matters which would properly be regarded as the joint expenses of the parties.
In the ordinary course of events, therefore, this sum should not be added back into the pool. However, during this period the wife had the advantage of living in the formal matrimonial home while the husband was obliged to rent a property elsewhere.
In his affidavit, he asserted that the rent was some $18,315.00.[26] This was updated by his oral evidence on 19 November 2009 to a figure of $24,398.
[26] Affidavit of the husband, filed 25 May 2009, [165].
Money paid for rent by one party might usually be offset against the outgoings paid by the other party in his or her occupation of the formal matrimonial home. In this case, if I were to quarantine from the amount to be added back the money expended by the wife on joint expenses for the house (her exhibit ‘X’ refers) this would be unfair because of the fact that the husband has had to bear the whole cost of his rental accommodation.
The two figures for expenditure are not coincident. However, it is not proper in some notional way to add expenditure by the husband into the asset pool and it ought to be treated rather as some form of contribution on his part.
In such circumstances, although it may to some extent and in a minor way under-rate the husband’s contribution, justice would be done between the parties if in fact the amount expended by the wife from the parties’ funds on joint expenses were added back into the asset pool.
So far as the other expenses agreed by the wife to have been expended by her, I note her comments to me in the course of her final submissions.[27]
[27] Transcript of proceedings, 20 November 2009, 147 & 148.
HIS HONOUR:…The question that I need to have an answer to, which you need to consider is, of the money that came from the insurance, whether or not you spent it on equipment for the business or spent it on anything, it doesn’t matter, except that it would ordinarily be added straight back into the pool of property unless it was expended by you on reasonable and normal business day to day living expenses. If the money came in and you took it out, which you did, and there is no argument about that, that you took the money and spent it, then if the expenses are properly matters that might have been joint expenses you could have been paying the mortgage or something like that then you can justifiably say it shouldn’t be added back in.
If it was spent by you in accordance with some recent decisions of our Full Court on reasonable living expenses, then it should not be added back in. Now, my difficulty is, I have no idea what part of that, at the moment, I could say is expended by you on reasonable living expenses and what part was not, because you’ve taken the attitude all the way through, it was my money I could do with it whatever I like. So the question is, where do I find a proper analysis of what it was spent on and why should I categorise what it was spent on as being proper living expenses rather than just your spending it on whatever you wanted to?
[THE WIFE]: That’s okay. I can go to the ATO and get an auditor to go through and do all of that. I’m happy to do that, your Honour.
HIS HONOUR: I don’t much care whether you get the ATO to do a fandango on top of a Christmas tree. What I want to know is what where I can find the evidence that I can properly use to do justice to you in these proceedings. I’ve already told you what I want and if you chose not to give it to me, then I m not in a position to follow it through. What I m saying to you is, where do I find evidence about what you spent the money on so I can see whether or not it could properly be categorised as reasonable living expenses?
[THE WIFE]: In annexure W.
HIS HONOUR: Sorry, if it isn’t there, I don’t have to worry about it. Is that what you re telling me?
[THE WIFE]: It s all in W.
HIS HONOUR: All right, thank you.
[THE WIFE]: The post bills I paid on the property, annexure 7 sorry, annexure in my affidavit, annexure X - - -
In essence, what the wife was inviting me to do in the course of the above exchange was to find that the expenditure that she had incurred as set out in annexures ‘W’ and ‘X’ to her affidavit were (in the Full Court’s terms, not hers) “reasonable living expenses.”
I have already dealt with annexure ‘X’ and I turn to annexure ‘W’ to consider what, if any, sums I should quarantine from being added back into the property pool. Annexure ‘W2’ sets out a summary of expenditure of money from time to time. There are two components to the insurance claim: one related to damaged property (chattels) and the other to damage to the house itself.
The wife seemed to be incapable of understanding that those matters which related to her business (at least for the purposes of family law) were no different from those that related to her.
I accept that there may have been claims she may have been able to make for taxation purposes, but these are of little concern in the course of my consideration of this part of the proceedings under the Family Law Act 1975 (Cth).

It seems clear and indeed is admitted by the wife, that some of the money received from CGU Insurance that may have been incurred by her in relation to her business assets was in fact expended by her in ways other than replacing the damaged items.
In the end, it is a question of how the money was expended – not whether or not it related to specific business items or whether or not at least in the mind of the wife the money needed to be returned to “her business.”
In Annexure ‘W2’, the wife set out how she disposed of $88,160 and I propose to deal with each of those items separately in accordance with the principles enunciated in NHC & RCH. Her expenditure appears below:

Item

Value

Expenditure on G Business Advisors

$25,000

Expenditure on CPR

≈$10,000

Expenditure on legal fees

≈$10,000

Expenditure on products from the “Good Guys”

$7,000

Expenditure on Visa card

≈$8,450

Expenditure on V Spa

$3,100

Expenditure on pilgrimage in December 2008 & January 2009

$7,500

“Post bills”

≈$15,900

Husband’s possession to storage facility

$880

Storage facility fees

$330

Total

$88,160

While it may be somewhat stretching the concept of “reasonable living expenses”, it seems to me to be just in the circumstances (given all of the career and life changes that have occurred to the wife) to allow the $25,000 and the $10,000 as retraining expenses and hence to be quarantined from the add-back.
The wife’s solicitors’ fees should not be so quarantined.[28]
[28] See Farnell & Farnell (1996) FLC 92-681 (Fogarty, Kay & Hilton JJ).
The “Good Guys” expenditure, which essentially replaced electrical appliances following the damage to the matrimonial home, would logically be part of normal living expenses except that there is no figure included in the asset pool for the contents of the house. It would be unreasonable to quarantine from the add-back without at the same time taking account of the present value of the assets. There is no value for the assets. Accordingly, the add-back should occur.
Similarly, in relation to the expenditure from the wife’s Visa Card of $8,450 there is at least an evidentiary onus on the part of the wife to demonstrate that this fell into or this was expended on “reasonable living expenses.” She has not done that. Consequently, I am not prepared to remove that from the list of items to be added back.
The wife’s attendance at V Spa was essentially of a private nature, although she asserted during the course of her evidence that it was to enable her to determine whether she should refer clients there.[29] Given that at the same time she was retraining for a career different from her career as proprietor of “W Centre” it seems difficult for this to be anything other then a somewhat generalised rationalisation of her need to attend for her own purposes. I reject that as a reasonable living expense.
[29] Transcript of proceedings, 19 November 2009, 77.
I understand that the wife does not suggest that the pilgrimage that she conducted through India and Nepal in December 2008 and January 2009 was anything other than private expenditure. The wife asserted that this expenditure came from the proceeds of the insurance claim for her business property and hence was her money rather than the money of both her and the husband. This is a misconception on her part and is a sum that should be added back in.
I have already dealt with the “post bills” as she describes them in her summary on ‘W2’ as being part of annexure ‘X’ of her affidavit.
It is reasonable that the storage facility fees should be shared between the parties and those sums are quarantined from being added back.
Accordingly, the total of $88,160 to be excluded from any notional add-back is $41,595 (being the total expenditure of $35,000 (retraining) + $880 (storage facility) + $330 (storage facility) = $41,595).
In addition, part of the money received from CGU was money relating to damage to the property itself. This seems to be summarised on annexure ‘W78’ to the wife’s affidavit. Annexure ‘W78’ to some extent exemplifies the confusion that appears to exist in mind of the wife about her business, herself, the house and expenses relating to all of these. To the extent that it records that money was spent totalling $5,835 on repairs to the house from the insurance money it is logically a sum which should not be part of the add-back. However, to the extent that is specifies a balance to be paid to her business of $21,917.35, as I have mentioned above, it misconstrues the nature of the separateness (or rather the lack thereof) of her business from her for the purposes of family law proceedings.
The sum of $5,835 should be excluded from any notional add-back into the pool.
This means that from the total money received by the wife from CGU Insurance (being $116,005.92), the sum of $74,410.92 should be added back into the pool ($116,005.92 – $41,595 exclusion as identified above = $74,410.92). Accordingly, there will be an add-back of $74,410.92 into the pool of property.

$40,000 cash

The issue about whether or not the wife has kept $40,000 allegedly held in cash in the house is a confusing one.
The evidence of the husband was that the parties kept amounts of cash which were contributed from time to time in different ways in envelopes or folders in their bedroom. The husband asserted that there was $40,000 of cash there at the time of separation which he believes the wife has appropriated to her own purposes.
The wife made a number of statements about this money. It seems the version that was finally settled on was that, however, much money was there, and the wife never did finally concede there was cash of $40,000, it came from money that had been paid to her by a client, Mr HM. The wife’s further evidence as to how the money then dissipated was far from clear and less than satisfactory.
In her final submissions on 20 November 2009, the wife identified annexures 'O' to 'O16' (of her affidavit filed 12 October 2009) as the receipts which demonstrated how the amount of $40,000 cash was spent.[30] The wife’s annexure 'O' provides a summary which suggests that approximately $35,385 was spent between 2002 and 2007 on various holidays, and other miscellaneous expenses (this included an amount of $4,000 spent on a Nissan Navara). I suggested to the wife that if the amount in question had been deposited in, for example, the parties' joint account and then subsequently withdrawn, as she appeared to submit, that the logical extension of this submission would be that there would not be any form of receipt on any of the bank accounts held by either party which demonstrated that the expenditure identified in annexures 'O' to 'O16' was paid in cash. I also indicated that I found difficulty in understanding why she had not deposited funds from a client of her business, on her submission, into the business account for “W Centre.” Accordingly, I indicated that I would be unable to accept her submission that the money had been spent unless I accepted her oral evidence as to that effect. The wife submitted that there was no other way that the expenditure reflected in annexures 'O' to 'O16' could have been made, effectively, "but for" that amount.
[30] Transcript of proceedings, 20 November 2009, 136 – 142.
In the alternative, the wife submitted that the money was deposited into the parties’ joint account, then subsequently withdrawn, then subsequently used to make various payments on her Visa card over the course of the relationship prior to separation. I questioned the wife as to why, once she had deposited the funds into the joint account, she would not then make a direct payment to her Visa Card, rather than withdrawing the money after depositing it and then paying the Visa Card. The wife explained that this was all taken out and paid on the same day. I have been unable to determine that this is so.
It seems that there was some cash there. Both parties agree on that. The precise amount is an issue as is the source of the funds.
Whether the money in question was derived as the wife asserted from her business, or whether it was a combination of funds from her business and from the husband’s business, or from some other form of savings of the parties, there is no reason for it to be dealt with otherwise than as the joint funds of the parties. In such circumstances, whatever may have been the sum of money that was kept there, if one party (and everyone is agreed in this case it was the wife) appropriated the sum then it would ordinarily be categorised as a premature unilateral distribution and be added back into the asset pool. However, in conformity with the principles enunciated in NHC & RCH, if the money had been expended on reasonable living expenses or on some project which was a joint project (for example in some cases the paying of a mortgage on a jointly owned property) then there should be no add-back.
In this case, the assertion from the wife is that there was no $40,000 at the time of separation and that it had been previously expended on holidays to different places on behalf of the parties. If the sum existed, and if it had been so expended, then clearly it should not represent something that should be added back.
The difficulty is the wife’s evidence about the matter was confused and in some cases contradictory. The evidence from the husband was perhaps necessarily vague as he did not have access to the house after separation but equally difficult to accept on its face about the amount of money at separation.
It is to be noted that in her submissions on 20 November 2009, the wife suggested that part of the money was applied in buying the antique bible that featured in other parts of the controversy between the parties. However, such an assertion would equally be consistent with her having purchased it prior to separation and with there being money kept in cash there.
In summary, the evidence of the husband that there was money there is not satisfactory. The evidence of the wife about when there was any money there is unsatisfactory. The evidence of the wife as to the application of the funds, while firm in assertion, is deficient in corroborative support. The parties had been ordered to provide corroborative material. Neither did so.
Accordingly, I cannot in the circumstances find that there was $40,000 in cash in the parties home at separation. I accept that there had been cash and I accept moreover that it was more likely than not that most, if not all of the funds kept in cash could have come from cheques paid by Mr HM to the wife in her name which for reasons totally unexplained (and possibly unexplainable) she paid into her personal account and then withdrew as cash. As I make no finding that such funds existed, it is therefore unnecessary for me to make a finding about the application of the funds and there is no add-back.

Various bank account balances

It has been extremely difficult to make any reliable determinations about some of the items suggested by counsel for the husband as being appropriate for inclusion in the pool of assets. This is because of a combination of factors. These include: the wife’s confused and disorganised approach to the presentation of her material; her failure in some respect to provide information at an earlier point; an abiding suspicion on the part of the husband as to what happened to the funds in question; and a failure ostensibly (on my investigation) by the husband to follow pathways indicated by the wife about the transfer of the funds.
Doing the best I can in the circumstances, I make the following findings in relation to the amounts involved.

Funds in the wife’s ANZ Business Account at separation

This is asserted by the husband to be $29,560. Indeed, that is the amount shown on the bank accounts of the wife.[31] The wife’s assertion in relation to this sum is that it was immediately reduced thereafter by a payment of $20,000 to Ms M in repayment of money made available by Ms M to the wife to place in her superannuation fund. I am satisfied from an examination of the records that a sum of $20,000 was deposited into the E Self‑Managed Superannuation Fund. I am further satisfied, having carefully considered the evidence of the wife, and notwithstanding a failure for it to be corroborated by Ms M, that the wife repaid $20,000 in three cheques almost immediately after separation. It defies all reasonable understanding that the wife would have felt obliged to repay the amount to Ms M by three cheques rather than one.
[31] Affidavit of the husband, filed 25 May 2009, Annexure ‘EEE1.’
Most people would not behave in this way. However, the wife’s behaviour on a number of matters has indicated a level of obsession which is bewildering in many respects but, nevertheless, in this instance, in my judgment, believable. This means that the amount properly to be taken into account as standing to the credit of the ANZ Business Account as at the date of separation is $9,560, not $29,560.
Counsel for the husband submitted that there were funds in the wife’s ANZ Personal Bank of $1,777 and that she had removed from the joint NAB Bank Account $9,610.61 and $58.60, a total of $9,669.00. The figures do not entirely accord with the records of the Bank Accounts, although their disbursement through various other documents has made locating the pathway of funds somewhat difficult. After reviewing the relevant bank statements,[32] I have traced as best I can what sums were paid to which accounts and when. I have taken into account the funds in the ANZ Business Account (as found in residue above) as at the date of separation. I have taken into account the disposition of funds both increasing and reducing other bank balances as at the same date. I have also taken into account (which Mr Farrar did not put to me I should) the amount outstanding on the wife’s Visa Account of the same date of approximately $8,160.60.[33] Accordingly, taking into account the transactions which feature on those various bank statements, in my opinion, the appropriate balance that I should find as being the amount of the bank accounts net at the time of separation for which the wife had benefit is $8,387.70. This will be added back into the total pool of property.
[32] Those bank statements being: annexure ‘T1’ of the husband’s affidavit filed 25 May 2009 (ANZ Bank personal bank account of the wife for the period 24 May 2007 to 22 June 2007); annexure ‘EEE1’ of the husband’s affidavit filed 25 May 2009 (ANZ bank account for “W Centre” for the period 23 May 2007 to 22 June 2007; Annexures ‘FFF1’ & ‘FFF2’ of the husband’s affidavit filed 25 May 2009 (two NAB Bank accounts jointly held by the parties for the period 5 May 2007 to 29 May 2007).
[33] Affidavit of the wife, filed 12 October 2009, Annexure ‘O23.’

Distribution of funds from Timbercorp investment

After Judgment was reserved in this matter, correspondence was received by the Court on 3 June 2010 from the solicitors for the husband acknowledging receipt of the sum of $19,138.15 as a result of the liquidated sale of timber lots. The Court also received communication from the wife about this prior to receipt of the correspondence from the husband’s solicitors about this (11 May 2010), in the end, it is appropriate it should be taken into account as was agreed between the parties. Accordingly, it will be included in the total pool of assets of the parties.

Cars

I note that there had been agreement that the parties’ cars would be regarded as cancelling each other out in this equation.

N Pty. Ltd.

It was agreed on the first day of the trial by the parties that the husband’s business would be valued at $500. That agreement was, in fact, a generous one to the husband given that his business bank account was worth more than that sum in any event.

$11,000 Proceeds of Mazda Tribute

I am satisfied that the sum of $11,000 in relation to the sale of the Mazda Tribute motor vehicle was deposited into the business account for the entity known as “W Centre” on 25 January 2007.[34] This was a date well before separation. I draw no inference from the fact that this money was in that account at that time, nor do I regard it as not being accounted for. The same might apply to any deposit into any account prior to separation. I do not add it back into the total property pool.
[34] Affidavit of the wife, filed 12 October 2009, Annexure ‘S1.’

Allianz Insurance claim

The wife acknowledged that she received $23,456.95 in an insurance claim from Allianz Insurance as a result of the burglary on 9 March 2009.[35] In common with other items in this add-back list representing her bank accounts, it is possible that this money was spent by the wife subsequently on her reasonable living expenses or on joint liabilities of the parties. However, in default of there being any evidence to support such a contention in a determinable way, or in a realistically proved way, I am unable and unwilling in the circumstances of this matter to make any findings that that is the case. The Allianz Insurance money will be added back into the total pool of property.
[35] Transcript of proceedings, 22 October 2009, 12.

Superannuation interests of the parties

For abundant caution, to indicate that I have not overlooked an argument on behalf of the wife, I indicate that, in my opinion, the value of the superannuation interests of the parties as indicated during the course of the proceedings should be taken into account. Although in C & C,[36] it was suggested that there should be a separate pool for superannuation, it is not appropriate that this occurs in this case. The interests of each of the parties should be added into the pool and should be treated as though they were any other part of the pool.
[36] C & C [2005] FamCA 429 (Bryant CJ, Finn, Coleman, Warnick & O’Ryan JJ).
I do not accept the argument the wife derived her superannuation entitlements exclusively from her own efforts and separate from any contribution direct or indirect of the husband.

$5,250 proceeds from sale of husband’s car

The evidence about this item is largely uncontested. The husband sold the car for approximately $5,500, kept $250 for his own purposes (no issue is taken with that) and hid the balance of $5,250 in cash. At separation, the wife (again it is common ground) found the money and spent it.
The question is whether that sum should be added back into the pool of property. At Annexure ‘N’ of her affidavit filed 12 October 2009, the wife set out (in and irregular fashion but one which I am prepared to accept as part of the affidavit for these purposes) what she did with the money. She stated that she spent two amounts of $1,231.40 and $1,591.78 in paying bills for the husband’s business.
In addition, $500 was spent on insurance, and the wife asserted that $1,174.12 was spent on “various household bills.” A further $700 was spent on dental expenses (whether the dental expenses related to her or the husband or both of them was not clear and was not the subject of cross-examination.)
The sums of $1,231.40 and $1,591.78 were sums that were repaid to the wife’s Visa Card account. I say repaid because the wife asserted she paid the money from that account in relation to the husband’s bills. Similarly, the sums of $1,174.12 and $500 referred to in annexure ‘N’ were also payments into her Visa Card account. That, in turn, reduced the balance of her Visa Card account. As set out elsewhere in this my Judgment, although the husband did not suggest this, it is appropriate that the wife’s debt as at separation should be offset against the money held by her in other various bank accounts. If these sums had not been paid into her Visa Card account then that debit balance would have been higher. The consequences in the final assessment of debts versus assets would have been different in favour of the wife. In such circumstances, although it is a matter of balance, and in the overall picture the amounts involved are relatively small, the sum of $5,250 should not be added back in.

Husband’s father’s repayment of loan to the husband

In an affidavit filed on 25 May 2010, the husband’s father gave evidence about a loan he had received form the parties. In the final paragraph, he attested to the fact that he paid a final amount of $1,360 to the husband on 3 June 2007. He was not required for cross-examination and it appears that there was no dispute about this fact. This was a few days after separation. It appears from the paragraph from the husband’s father’s affidavit the money was applied by the husband for ordinary and reasonable living expenses. Hence, even if it were a larger sum, it may well be an amount that should not be added back as the wife seeks. It is, in any event, an example such a minor amount as not being required to be taken into account.[37] Accordingly, there will be no add-back as the wife seeks of $680.
[37] De minimis non curat lex.

Conclusion – the net assets of the parties

Based on the above reasons, I find that the net assets of the parties (including notional add‑backs) and consequent total pool of property is as follows:

Asset	Held by	Value
Proceeds of sale from H property (interim property distribution) to the husband	Husband	$60,000
Proceeds of sale from H property (interim property distribution) to the wife	Wife	$60,000
Balance of proceeds of sale held in Trust	Held in trust by Colquhoun Murphy	$325,096.87
Husband’s superannuation	Husband	$93,723
Wife’s superannuation	Wife	$133,463
Residue of CGU Insurance Claim	Wife	$74,410.92
Residue of funds from various bank accounts	Wife	$8,387.70
Timbercorp investment interests	Husband	$19,138.15
N Pty. Ltd.	Husband	$500
Allianz Insurance claim proceeds	Wife	$23,456.95
Total	$798,176.59

Contributions of the parties

Relevant law

In Norman & Norman,[38] the Full Court of the Family Court (Finn, May & Murphy JJ) discussed the difficulty in evaluating contributions over the course of a relationship. The Full Court relevantly stated at [29]:
[29] As was said to counsel during the hearing of the appeal, we consider the reference to "offsetting" contributions, as with references to "erosion", to be unhelpful. The better approach is that to which this court referred in Pierce & Pierce (1999) FLC 92-844 at 85,881:
...it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution...
Reference should also be made in that respect to the discussion in the recent decision of this Court in Cabbell and Cabbell, above, at 43. (Footnotes of the Full Court).
[38] Norman & Norman [2010] FamCAFC 66 (Finn, May & Murphy JJ).
The references to Cabbell & Cabell[39] referred to by the Full Court in Norman & Norman are extracted below:
[43] The principles enunciated in decisions prior to 1999 are conveniently reviewed in Pierce & Pierce (1999) FLC 92-844 at paragraphs 25 - 27 of that judgment. In those paragraphs the Full Court (Ellis, Baker and O’Ryan JJ) referred to the cases which discussed the concept of an initial contribution being “eroded” or offset to a greater or lesser extent by later contributions during the marriage, and the qualification to or expansion of this concept by Fogarty J in Money & Money (1994) FLC 92-485 at 81,054, namely that later contributions over a long marriage did not need to be greater, but rather those contributions (sometimes referred to as the myriad of other contributions) “offset” the significance which might be placed on greater initial contributions. Their Honours then, at paragraph 28, explained that in assessing contribution (including initial contributions) rather than considering if an initial contribution had been “eroded”, what was relevant was the “weight to be attached, in all the circumstances, to the initial contribution”. Their Honours then explained the initial contribution should be weighed with all other contributions, and in paragraph 30 stressed the need for a trial Judge “not only to identify the relevant contributions, but also to assess them”. That latter statement of principle is consistent with the discussion in Mallet v Mallet (1984) 156 CLR 605 where Mason J said in discussing s 79:
The section contemplates that an order will not be made unless the court is satisfied that it is just and equitable to make the order (s. 79(2)), after taking into account the factors mentioned in (a) to (e) of s. 79(4). The requirement that the court “shall take into account” these factors imposes a duty on the court to evaluate them. Thus, the court must in a given case evaluate the respective contributions of husband and wife under pars. (a) and (b) of sub-s. (4), difficult though that may be in some cases.
[44] In Williams & Williams [2007] FamCA 313 the Full Court (Kay, Coleman and Stevenson JJ), after discussing conflicting cases determined in the New South Wales Court of Appeal under the Property (Relationships) Act 1984 (NSW) which involved discussion of how initial contributions should be assessed in a property adjustment case under that legislation, said at paragraph 26:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
[45] We do not think it is necessary we attempt to prescribe further guidelines for the discretionary exercise which must be undertaken by a trial Judge in assessing initial contribution. That exercise must be undertaken having regard to the individual facts of a particular case. (Footnotes of the Full Court).
[39] Cabbell & Cabell [2009] FamCAFC 205 (Boland, Thackray & O’Ryan JJ).
In this matter, contributions by each of the parties might be divided into three different categories: those before, or those upon, commencement of cohabitation; those during the time the parties were together; and those post separation.

Initial contributions

As stated above in my Judgment, at the time the parties began living together the wife owned a house in R, ACT. The details of the disposal of that property and how much eventually made its way into the matrimonial home in H, ACT are (as is the case with so many other things in this matter) somewhat confused. It is common ground, however, that at least $80,000 was applied in reduction of a bridging loan in relation to the H property from the sale of the R house. The wife also asserted that it was her ability to provide the R property as security which enabled the parties to purchase the H property. The wife also had some furniture and possibly some savings, although the evidence is such that I could not make any precise finding about any sums of money held by her at the time of the commencement of cohabitation. I have no value in relation to the furniture.
The husband appears to have had some $25,586 in savings, but it seems that this included some money he had borrowed from this father apparently for the purposes of demonstrating a savings history. It seems in any event that whatever the borrowing may have been from the husband’s father, it was subsequently repaid.
In addition the husband at that stage had an interest in a business called ‘L Design’. Again it is hard to be precise about how much he actually received in respect of that sale and how much of what may have been properly regarded as capital from the sale was in fact received by way of income as a result of the arrangements for his exit from the company. As is stated above, the husband claims to have deposited $53,599.16 into the joint home loan account and it is probable that in overall benefits he received approximately $112,532.
Weighing these various factors up it is difficult, to conclude the extent to which either of the parties contributed more than the other initially. In any event, even if the initial contributions were in some way unequal, each of them contributed in accordance with the principles enunciated by the Full Court above in Pierce & Pierce towards the development of the principal item of the parties’ wealth – the home in H. The relationship was not a particularly long one but neither was it short. In my opinion, it is inappropriate to ascribe any significant difference in initial contributions to either of the parties.

Contributions during the course of the marriage

The parties would not and could not agree about the extent to which they contributed either financially or physically to the development of their wealth during the course of the marriage. Each asserted that the other had for different periods been effectively unemployed and supported by the asserting person. The husband claimed that he had materially assisted in the wife’s business. The wife denied this. The wife claimed to have assisted the husband by bookkeeping in respect of his business but there is little evidence before me to support this contention as a substantial contribution.
The husband, through his lawyers, produced a table of taxable income which demonstrated, if it represented money that came into the relationship, a substantial financial contribution over the period of the relationship by him. The wife produced no equivalent table and it is almost impossible to assess the value of their respective financial contributions from their paid personal exertion. The situation was not assisted by the wife’s continual insistence that in essence anything she earned was hers and that effectively anything that was earned by the husband was in some way to be regarded as a joint contribution. This appears to have affected the way in which she presented her evidence and in the end served only to confuse.
On the basis of the evidence provided by the husband, particularly the table of taxable income, and I have not overlooked the wife’s assertion that this table does not accurately represent money that actually came into the relationship, it might be reasonable to assume that the husband contributed more financially during this period.
I am unable on the evidence to make any finding about physical contributions of the parties except that I am satisfied that both did contribute either by organisation or physical effort.
In summary, taking account of the potential possible differentiation undefined and undefinable in relation to initial contributions and the potential differentiation of contribution during the period of cohabitation, on balance, I find that the contributions that the parties made before and during the cohabitation should properly be regarded as equal.

Post‑separation contributions

To some extent these have already been dealt with above in my discussion about the add‑backs. There are no other matters post separation which would lead me to ascribe a greater contribution from one party or the other or indeed to ascribe any contribution post‑separation.
I am left with a position that the proper finding for me to make overall, in my opinion, is that the contributions of the parties should be regarded as equal. I do so in the light of the Full Court authority extracted above and having regard to the proposition that whether the parties formally acknowledged it in any document (which they did not) there was at least an informal arrangement between them which acknowledged that each of them would contribute according to his or her means and capabilities for the joint production of wealth. This was by admission from either party a joint exercise involving the purchase of timber lots, a time share, investment properties and superannuation. Accordingly, differences of contribution are not of great significance in the overall assessment.

Matters referred to in s 75 (2) of the Family Law Act 1975 (Cth)

It is somewhat monotonous to continue to recite that the evidence relating to this matter as well is so inexact or nonexistent to permit any detailed findings to differentiate between the parties. Although the wife claims health problems, there is no admissible evidence about these matters and in the past she has shown entrepreneurial flair and the ability to adjust to different market conditions and to pursue different career paths. Her capacity to earn was reported by her with optimism to a large extent during her evidence, although the extent to which this was dictated by hubris rather than a realistic assessment is difficult to determine.
The husband’s present financial circumstances including the financial circumstances of his relationship with his present partner are substantially unreported. To the extent that I might draw an inference from his past activities it would seem that he has a relatively secure future doing what he has done.
The relationship and marriage have not substantially affected the ability of either party to earn further income and while the wife has undergone quite a number of courses of education and training there is no reason to suppose that any further such courses would increase her income earning capacity. The husband’s present skills appear to be adequate for his future purposes.
Accordingly in my opinion, there is no basis for me to make any adjustment under s 75(2) of the Family Law Act 1975 (Cth).
I note that counsel for the husband suggested that I should make an adjustment in favour of the husband under s 75(2)(o) to take account of the wife’s activities or in some cases lack of activities during the course of these proceedings. In essence, he maintained that the conduct of the wife’s case by her, an in particular in relation to her alleged non-disclosure, lead to an increase in costs to his client and that this should be in some way adjusted under s 75(2)(o). Questions of costs are matters properly to be considered under s 117 of the Family Law Act 1975 (Cth). I decline to make any adjustment in relation to this matter.
As stated above, on my findings, the total pool of property in this matter is $798,176.59. I propose to divide this sum equally between the parties (such that the parties each receive the sum of $399,088. I take into account the following property presently held in the parties’ hands (including notional add-backs):
a)the husband presently holds $173,361.15 (being the total of: $60,000 for the proceeds of sale of the H property (interim property distribution; $93,723 in superannuation; $19,138.15 distribution from the Timbercorp investment; and his interest in N Pty. Ltd. of $500); and
b)the wife presently holds $299,718.57 (being the total of: $60,000 for the proceeds of sale of the H property (interim property distribution); $133,463 in superannuation; $74,410.92 as the residue from the CGU Insurance claim; $8,387.70 as the residue from the various bank accounts; and $23,456.95 from the Allianz Insurance claim).
This means, from the money that is held in trust by Colquhoun Murphy
Accordingly, I propose to make orders that the balance of the proceeds of the sale of the H property held on trust by Colquhoun Murphy be distributed as follows:
a)$399,088 – $173,361.15 = $225,727 to the husband; and
b)$399,088 – $299,718.57 = $99,369 to the wife.
The balance of any interest that has accumulated in the trust account will be divided equally between the parties after the payment of the above sums to the husband the wife respectively in accordance with my orders.

To render to each what is their due: justice and equity between the parties

To the extent that it is necessary for me to conduct a fourth stage assessment of the result to determine whether the orders might be just and equitable I am satisfied that the application of the principles that I have applied above in accordance with the evidence such as I have been able to determine it leads me to conclude that the division of property I propose would in the circumstances be just and equitable.
I would be astonished if either of the parties were satisfied with the result. That however is not the test. In circumstances where a matter has been litigated before the Court and each of the parties has had an opportunity to put before me all matters that relate to the factors I am to take into account in the end, it is a matter for me as the trial Judge to make an assessment based on the evidence I have before me.

Various chattels

The wife sought orders requiring the husband to return items of hers she said were in his possession. I note that the husband in his minute of orders sought identified certain items of property the wife claimed he held could be returned within seven days. If the husband has not already done so, I will make an order to this effect about the known items in the husband’s possession. Otherwise, the evidence about what the other items were, whether the husband ever had or whether or not he still has them is unsatisfactory. Consequently, noting the husband’s willingness to return the items if they do indeed exist, I make no order in respect of those items, other than the husband will return them as soon as reasonably practicable to the wife if he indeed has those items in his possession.

Conclusion

I make orders in accordance with my Judgment. The matter is removed from the pending cases list.
I make directions for the filing of submissions with respect to costs in accordance with my orders. It is noted that the question of costs will be determined by me in Chambers by way of written submissions, if indeed any written submissions are filed within the stipulated timeframe.

I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate:

Date: 24 June 2010

[1] Minute of orders sought by the husband (filed in Court on 19 November 2009):

1.That within 7 days the husband and wife shall do all things necessary to cause the proceeds from the sale of the property at [H] in the Australian Capital Territory (“the Property”), held by the joint conveyancing solicitor Colquhoun Murphy, to be paid to the husband. Service of this order on both solicitors will be sufficient authority for them to make the payment. :
2.That within 30 days, the husband shall do all things and sign all documents necessary to transfer three of the six wood lots for the 2000 Timbercorp project and three of the six wood lots for the 2001 Timbercorp project, to the wife at the wife’s expense.
3.That in the event the wife seeks to retain the [A] timeshare, then she shall:
a.Inform the husband in writing of her election to retain her interest and acquire the husband’s interest in the [A] timeshare within seven days of the date of these orders;

b.Within a further seven days, provide to the husband’s solicitor, Farrar Gesini & Dunn a bank cheque made payable to Farrar Gesini & Dunn Trust Accouny in the sum of $7,000; and
c.Contemporaneous with sub-paragraph (b) above, the husband shall sign all documents necessary to assign his interest in the [A] timeshare to the wife at her expense.

4.For the purpose of facilitating the husband’s compliance with sub-paragraph (c) above, the wife shall provide to the husband the necessary documents required by him to effect a transfer of his interest in the [A] timeshare at the time she provide her written election to the husband referred to in paragraph (a) above.
5.If the wife does not wish to acquire the timeshare pursuant to order 3 then the husband and wife within 30 days shall do all things and sign all documents necessary to sell jointly owned [A] timeshare and to that end, the wife shall provide her written authority for the husband to advertise the timeshare for sale on the internet and the wife shall pay the husband 50% of the costs of sale including the advertising fee from her share of het (sic) sale proceeds.
6.Upon the sale of the [A] timeshare, the husband and wife shall cause the net proceeds to be divided as follows:
a.50% to the husband plus the wife’s 50% share of the sale expenses; and
b.The balance to the wife.
c.(sic).

7.That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.
8.That within 7 days the husband will make available for collection by the wife at her expense, the following items:
a.
i.Black Kinetix pants;
ii.2 x grey book cases;
iii.6 x boxes of books;
iv.2 x Merkabas – red and gold;
v.Conversations with God book; and
vi.Conversations with God CD.

b.If the husband has the following items, he shall make them available to the wife to collect with the items referred to in paragraph 8:
i.Brown blanket;
ii.Coloured mattress;
iii.CDs (Celestial Prophecies, Queen and CD cover to Goodbye Vietnam) and case cover Wet Skin Material;
iv.Other books belonging to the wife that were at [P Corp] prior to separation;
v.Three Jain books; and
vi.Pindari Herb Farm notes.

9.That subject to these orders the wife shall retain her sole right title and interest in the following items:
a.Her superannuation entitlement;
b.Furniture and household effects in her possession;
c.Her jewellery;
d.Her motor vehicle.

10.That subject to these orders the husband shall retain his sole right title and interest in the following:
a.His superannuation entitlements;
b.Furniture and household effects in his possession; and
c.His Motor vehicle.

11.That the husband and wife shall, in their capacity as the trustee of the [E] Superannuation Fund, do all things and sign all documents necessary within 14 days of the date of these Orders to cause and enable the husband to rollover his membership interest in the [E] Superannuation Self-managed Fund into another complying superannuation fund.
12.

[2] Minute of orders by the wife (filed 18 November 2009):

1.Wife to receive back all that she brought in to the relationship (proceeds from sale of wife’s [R] property $129,500.00, proceeds from sale of wife’s Mitsubishi Lancer car $12,000.00 plus her inheritance fro (sic) her father’s estate $25,000.00).
2.House at [H] sold for $460,000.00, wife to receive 70% of sale price minus expenses. Wife to receive on top of 70% $2,000.00 (fee) for preparing and cleaning property for settlement and new owner’s occupation.
3.All post-separation property rates and insurance premiums for the house to be shared equally by the parties. As this is a joint investment and applicant is joint owner of property and has made no contribution to these expenses since May 2007. Please note that applicant has been in co-habitation for the past two years and is now supported. Husband to pay his share of remaining post-separation property bills ref wife’s aff 22/10/09 number 54 annexure X.
4.Wife to receive 70% of the Timbercorp investment, this being her contribution to it. The investment is held in the husband’s name for taxation benefits. Note that wife’s share of earnings from the investment is dealt with in point 11(a) below.
5.Wife to receive 70% of the [A] investment, this being her contribution to the investment.
6.Husband to return many items taken from wife as per attached list. Items to be returned in the same presentable condition as when taken, or to be replaced.
7.Each party to keep their own superannuation investments.
8.Each party to keep their own vehicles.
9.Each party to keep their own pre-relationship and post-relationship furniture and household effects.
10.Wife’s share of husband’s business [N Company] to be determined (wife is not in a position to calculate her share as she is to receive the necessary paper work ie details of business loan and AON and Alliance insurance arrangements and asked for several times).
11.Reimbursement for the following (refer wife’s Affidavit 14 April 2009 paragraph 9 and 12 October 2009, paragraph 47 to 51).
a.Wife’s share of Timbercorp earnings from purchase date to present day (wife’s share of investment dealt with in point 4 above, annexure’s (sic) K18 & 20 Affidavit 12 October 2009).
b.Wife’s payment of maintenance costs for husband’s car from December 2003 to March 2006 when husband had no income. Wife’s Affidavit 12 October 2009 paragraph 58K.
c.Wife’s contribution $3,875.00 husband’s income protection insurance with Norwich Union. Wife’s affidavit 12 October 2009 paragraph 49 and annexure Z.
d.Wife’s share of loan repayment from [Mr Babrow Snr[ (husband’s father). Wife’s Affidavit 12 October paragraph 47 and annexure T to T4.
e.NRMA shares $1,618.00 pre-relationship refer Affidavit 22/10/09 annexure AA.
f.Gas heater $4,400 purchased by wife from the $40,000 refer Affidavit 22/10/09 annexure O.
g.Reimbursement tax benefits from husband for New Zealand properties in his tax returns 2004, 2005 and 2006 which is on his taxable income (due to no income to contributions and household), wife has had no benefit, seeks reimbursement, that’s why he shows taxable income refer Affidavit 22/10/09 paragraph 19H.
h.Legal storage and removalist fees to be paid due to husband’s failure to collect possessions.

12.Wife to retain all jewellery that remains after robbery that was purchased by her, or gifted to her, along with Allianz Insurance $8,250 payout for the jewellery stolen. The husband was in possession of all his belongings, and has no claim in respect to Allianz Insurance payout relating to burglary at [H] property 9 March 2009 (Affidavit 12 October 2009 paragraph 57).
13.Wife to receive half proceeds of $50,000 taken by husband to pay Asgard investments $20,000 (Affidavit 12 October 2009 paragraph 19A and annexure E to E8) and $30,000.00 (Affidavit 12 October 2009 paragraph 19B and annexure G1 to G4 from the joint account.
14.Wife to receive her tax refunds (Affidavit 12 October 2009 annexure K14 to K15).
15.Wife seeks reimbursement of money paid by her to cover applican’ts (sic) tax debts (Affidavit 12 October 2009 paragraph 51 annexure K10 to K12).
16.Wife seeks lottery win $3861.45 (Affidavit 12 October 2009 paragraph 43).
17.Wife seeks reimbursement costs of Personal Development Workshops $6,000.00 attended by applicant and paid by wife.

Husband to withdraw spurious claims:

18.
a.Husband is claiming part ownership of CGU Insurance payout approx $114,000.00 resulting from flood damage to [H] property 10 February 2007. Funds were returned to wife’s business and remainder was used for joint loan purpose. (Affidavit 12 October 2009 paragraph 40 to 41). Husband has no legitimate claim to these monies.
b.Husband is claiming proceeds from sale of Nissan Navara $5,250.00. Breakdown of this sum is referred to in Affidavit 12 October 2009 Annexure N – there are no funds to claim.
c.Husband is claiming $40,000.00 in personal cheques to me from [HM]. There are no funds to claim. Refer Affidavit 12 October 2009 paragraph 36 Annexure O.
d.Husband is claiming my 2006 tax refund approx $9,300.00. This refund relates only to my income from wife’s capacity and husband has no claim. Ref Affidavit 12 October 2009 paragraph 30.

19.If husband’s board game design publication ideas become commercially successful, wife wishes to claim half of husband’s profits, as I supported and contributed to this venture. Refer husband’s Affidavit 22 May 2009 paragraph 67.
20.Future needs of wife to be considered. Due to harassment, bullying and victimisation from Farrar, Gesini & Dunn legal team, wife’s health has suffered, and I am now a damaged party. Refer correspondence to his Honourable Judge Faulks sealed 15 July 2009 (one example) and approval for consultations with Victim Support ACT.
21.Reimbursement by ACT Revenue Office as excess rates paid by wife to be paid to wife alone.
22.Husband pays the $96 to release the ASK funding caveat put on by husband.
23.That :[GM]. be the wife’s McKenzie friend at the bench.
24.That the wife be permitted to ring :[…]., “PLENIPOTENTIARY-JUDGE at any time during the proceedings :PHONE ~ […], :CELL ~ […] from the court.

Annexure “A”

Items to be returned to [the wife] by [the husband]

·    Brown blanket (present from mother)
·    Coloured mattress (business item)
·    ‘Coversations (sic) with God’ CD
·    ‘Celestial Prophecies’ CD
·    Queen CD
·    CD Cover to ‘Vietnam’
·    CD cover to ‘Goodbye Vietnam’
·    CD case cover (wet skin material)
·    Black Kinetiz pants
·    Portable cassette player including case and ear plugs
·    2 x Grey bookcases
·    6 x boxes of books packed in August 2002
·    Other books belonging to me which were located at [P Corp]
·    Chalice
·    2 x ‘merkabahs’ – red and gold
·    3 ‘Jain’ books
·    ‘Conversations with God’ book
·    Pindari Herb Farm notes

[3] Orders of Deputy Chief Justice Faulks (26 March 2009):

1.The list of issues and chronology handed up to me in Court on the 26th of March 2009 by Ms White on behalf of the applicant be sent to the respondent at [H].
2.Both parties will provide such further comments in relation to the joint list of assets and liabilities as at the 13th of March 2009 as may be necessary, after the following matters are noted:
a.The [H[ property – it is agreed that the property be sold. Each of the parties will confer and agree about an agent for the sale, the listing price, the “reserve” price (if an offer should be received lower than the listing price) and the terms of sale. Agreement will be reached about these matters or the parameters of the dispute defined before the matter is next before the Court.
b.The [A] “timeshare” – it is agreed that it will be sold. The parties will agree upon the terms and conditions of the sale, the person responsible for the sale before the time the matter is next before the Court.
c.Timbercorp woodlots – prior to the next time the matter is in Court, solicitors for the applicant will authorise Timbercorp Ltd. to communicate with the respondent and to advise her their current valuation of the woodlots.
d.Financial Statements – each of the parties before the matter is next before the Court will make available to the other party all bank statements, credit card statements and financial institution statements from the 1st of May 2007 until the present time. Copies of such documents may be deposited at the Court for inspection and retention by the Court pending their tender if required in subsequent proceedings.
e.Motor vehicles – prior to the next time the matter is before the Court, the applicant will provide evidence to the respondent of the outstanding debt in relation to the motor vehicle to verify whether or not there is nil equity in the car. Similarly, the respondent will provide to the applicant such information as may verify her assertion that her present motor vehicle has no equity or value other than its payout.
f.[N Company] – unless the respondent has evidence that this entity has some value, this will not be an item for dispute before the Court.
g.[W Centre] – prior to the next time the matter is before the Court, the respondent will provide to the solicitors for the applicant, unless she has already done so, all records about money she has received in relation to the sale of the assets of the plant and equipment. The respondent will also, so far as she is able to do so, identify any taxation consequences that may flow from items being sold at a level higher than their depreciated value.
h.Taxation assessments – each of the parties will provide a copy of their tax assessment for the years ending the 30th of June 2007 and the 30th of June 2008 and, if a refund was received by either party will provide such records (other than those already provided above) which indicate where the money went that was received from the Australian Taxation Office by way of refund.
i.Cash at separation – noting the respondent says that receipts have been provided in relation to this matter (which seems improbable in the nature of things) the only evidence which I will accept in relation to this matter is the affidavit evidence of the parties which I will direct in due course. Any corroborative material either party has in relation to the sums that were or were not held by the parties in the house at separation will be provided and disclosed prior to the next time the matter is before the Court.
j.Bank accounts applied for specific purposes – if either party seeks to assert that sums were in either parties bank account(s) at the date of separation have been applied towards a joint purpose, he or she will provide prior to the next time the matter is before the Court documents which corroborate or verify such expenditure.
k.Proceeds of the sale of the applicant’s motor vehicle – same comments apply in this matter as in relation to 2(j). The respondent asserts that she has provided receipts in relation to the expenditure of the money. Any additional information which explains the expenditure of the money referred to must be provided prior to the next time the matter is before the Court.
l.Jewellery – subject only to any sum that may be recovered with respect to an insurance claim for the jewellery recently stolen, this is not an item which will be the subject of further valuation or determination in the proceedings. I note the allegation that an eternity ring and a diamond earring are in the applicant’s possession (or should be). I note the respondent has given away her engagement and wedding rings. I note the assertion that the parties paid jointly for the respondent’s engagement and wedding rings the sum of $16,000.00.
m.Household furniture and effects – this will not constitute an item for dispute between the parties unless either party is able to demonstrate to me on the next occasion the matter is before the Court that the furniture has such value that would warrant the time of the Court in making a determination about its division. No valuation will be obtained in relation to any of the household furniture without my leave.
n.Liabilities – each of the parties will provide to the other party prior to the next time the matter is before the Court, any documentary evidence he or she has in relation to any liability he or she claims should be brought into account either as a joint liability or as a particular liability to be considered by the Court as a relevant matter s 75(2) of the Family Law Act 1975 (Cth).
o.Figure of superannuation – to the extent that any superannuation entitlement of either of the parties is not an accumulation fund, he or she will obtain a proper valuation of the superannuation fund in accordance with the Family Law Regulations prior to the next time the matter is before the Court.

3.Otherwise the matter is adjourned until 12 noon on the 6th of May 2009 for confirmation that all of the directions given this day have been complied with and that all of the relevant evidence is before the Court.
4.Orders for costs against the party who has failed to comply with the directions may be considered at the next occasion the matter is before the Court.
5.The parties will make each other an offer of settlement without prejudice and without disclosing such offer to the Court. Each of the parties will duly consider the offer with such advice as he or she considers to be appropriate and will, if possible, make a genuine effort to resolve the matter without further litigation.
6.

Non-contentious Assets	Value
Proceeds of sale from H property (interim property distribution)to the husband	$60,000
Proceeds of sale from H property (interim property distribution) to the wife	$60,000
Balance of proceeds of sale held in Trust	$325,096.87
Husband’s superannuation	$93,723
Wife’s superannuation	$133,463

Item	Value
Expenditure on G Business Advisors	$25,000
Expenditure on CPR	≈$10,000
Expenditure on legal fees	≈$10,000
Expenditure on products from the “Good Guys”	$7,000
Expenditure on Visa card	≈$8,450
Expenditure on V Spa	$3,100
Expenditure on pilgrimage in December 2008 & January 2009	$7,500
“Post bills”	≈$15,900
Husband’s possession to storage facility	$880
Storage facility fees	$330
Total	$88,160