Baker & Starskey

FAMILY COURT OF AUSTRALIA

BAKER & STARSKEY

[2009] FamCA 195

FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation

Family Law Act 1975 (Cth) ss 75, 79

In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414

APPLICANT:

Ms Baker

RESPONDENT:

Mr Starskey

FILE NUMBER:

NCC

692

Of

2008

DATE DELIVERED:

20 February 2009

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

PLACE HEARD: Newcastle

HEARING DATE:

12 & 13 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr J. Hamilton
SOLICITOR FOR THE APPLICANT:	Kinnear & Company

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr P. Hartley

SOLICITOR FOR THE RESPONDENT

Attwaters Solicitors

Orders

Within 35 days the wife shall pay $89,377.50 to the husband and forthwith upon that payment the husband shall:
1.1.Do all acts and sign all documents provided by the wife, at her expense, necessary to transfer to the wife all of his right title and interest in the real property situate at and known as D property in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … ("the home").
1.2.Do all acts and execute all documents necessary to discharge the mortgages to the Newcastle Permanent Building Society registered dealing numbers … and … (“the mortgage”).
In accordance with paragraph 90MT(1)(b) of the Family Law Act, 1975:
2.1The wife is allocated a base amount of $55,591 out of the husband’s interest in the Starskey Superannuation Fund; and
2.2The husband’s entitlement in the Starskey Superannuation Fund, is correspondingly reduced.
The Trustees of the Starskey Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:
3.1Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement created for the wife in clause 2 of this Order; and
3.2Pay the respective entitlements whenever the Trustee makes a splittable payment out of the wife’s interest in the Starskey Superannuation Fund.
Clauses 2 and 3 of this order have effect from the operative time which the date of the making of these Orders.
After service by the Trustee of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994:
5.1.The wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the transferable benefits from the Starskey Superannuation Fund to a regulated fund of the wife’s choosing (“the wife’s new super fund”); and
5.2.The husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in his name in the Starskey Superannuation Fund.
Following the receipt by the Trustee of the elections made by the husband and wife as contemplated by clause 5, the husband and wife in their capacities as Trustees shall cause a meeting to be held in accordance with the Rules of the Superannuation Fund Trust Deed of the Starskey Superannuation Fund and in that meeting shall:
6.1 Calculate the amount of the transferable benefits;
6.2Authorise the transfer of the transferable benefits to the wife’s new super fund; and
6.3Authorise the consolidation of the husband’s interest in the Starskey Superannuation Fund.
In the event of any dispute arising between the parties in the exercise of their powers as Trustees of the Starskey Superannuation Fund, the parties shall appoint an arbitrator nominated by the President of the Institute of Chartered Accountants.
Pending the transfer of the transferable benefits from the husband to the wife:
8.1.Each party is restrained from dealing with, charging, encumbering or disposing of any of the assets of the Starskey Superannuation Fund other than in accordance with the terms of this order; and
8.2.Each party shall immediately revoke any binding death benefit nomination already made and each party be and is hereby restrained from:
8.2.1.Making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
8.2.2.Making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
8.2.3.Doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under this order.
Before the close of the meeting contemplated by clause 6 of this Order, the wife shall do all such acts and things and sign all such documents as may be necessary to resign as a Trustee of the Starskey Superannuation Fund.
Unless otherwise specified in these Orders and as between the parties:
10.1.Each party be declared to be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank's record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and
10.2.Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
If either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these Orders the Registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the defaulting party and to perform all necessary acts and things to give force and effect to these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 692 of 2008

MS BAKER

Applicant

And

MR STARSKEY

Respondent

REASONS FOR JUDGMENT

After a marriage spanning 23 years the parties cannot agree on a settlement of their property.

Applications

The wife seeks orders in terms of her Application For Final Orders filed 18 March 2008 as follows:
1.Within 35 days, the Husband must:
1.1Do all acts and sign all documents provided by the wife at her expense necessary to transfer to the wife all of his right title and interest in the real property situate at and known as [D property] in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier […] ("the home").
1.2Do all acts and execute all documents necessary to discharge the mortgages to the Newcastle Permanent Building Society registered dealing numbers […] and […] (“the mortgage”).
1.3Pay to the Wife $51,000.00.
2. In accordance with paragraph 90MT(1)(b) of the Family Law Act, 1975:
2.1 The wife is allocated a base amount of $175,000.00 out of the Husband’s interest in the [Starskey] Superannuation Fund; and
2.2 The husband’s entitlement in the [Starskey] Superannuation Fund, is correspondingly reduced.

3.The Trustees shall do all such acts and things and sign all such documents as may be necessary to:
3.1 Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement created for the wife in clause 2 of this Order; and
3.2 Pay the respective entitlements whenever the Trustee makes a splittable payment out of the wife’s interest in the [Starskey] Superannuation Fund.
4.Clauses 2 and 3 of this order have effect from the operative time which the date of the making of these Orders.
5.After service by the Trustee of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994:
5.1 The wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the transferable benefits from the [Starskey] Superannuation Fund to a regulated fund of the wife’s choosing (“the wife’s new super fund”); and
5.2 The husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in his name in the [Starskey] Superannuation Fund.
6.Following the receipt by the Trustee of the elections made by the husband and wife as contemplated by clause 5, the husband and wife in their capacities as Trustees shall cause a meeting to be held in accordance with the Rules of the Superannuation Fund Trust Deed of the [Starskey] Superannuation Fund and in that meeting shall:
6.1Calculate the amount of the transferable benefits;
6.2Authorise the transfer of the transferable benefits to the wife’s new super fund; and
6.3Authorise the consolidation of the husband’s interest in the [Starskey] Superannuation Fund.

7.In the event of any dispute arising between the parties in the exercise of their powers as Trustees of the [Starskey] Superannuation Fund, the parties shall appoint an arbitrator nominated by the President of the Institute of Chartered Accountants.
8.Pending the transfer of the transferable benefits from the husband to the wife:
8.1Each party is restrained from dealing with, charging, encumbering or disposing of any of the assets of the [Starskey] Superannuation Fund other than in accordance with the terms of this order; and
8.2Each party shall immediately revoke any binding death benefit nomination already made and each party be and is hereby restrained from:
8.2.1Making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
8.2.2Making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
8.2.3Doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under this order.

9.Before the close of the meeting of the Trustee as contemplated by clause 6 of this Order, the wife shall do all such acts and things and sign all such documents as may be necessary to resign as a Trustee of the [Starskey] Superannuation Fund.
10.That unless otherwise specified in these Orders and as between the parties:
10.1Each party be declared to be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank's record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and
10.2Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

11.That if either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these Orders the Registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act (or any provision replacing or amending same or make like or similar provision) to execute such documents on behalf of the defaulting party and that:
11.1The Registrar do all necessary acts and things to give force and effect to these orders; and
11.2The defaulting party pay the costs of the other party on a solicitor/own client basis.

The husband seeks orders in accordance with a minute handed up on the first day of the hearing as follows:
1. Within 35 days, the Husband must do all acts and sign all documents provided by the Wife at her expense necessary to transfer to the Wife all of his right title and interest in the real property situate at and known as [D property] in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier […] ("the home").
2.At the same time as the Husband does all acts referred to in paragraph 1, the Wife must pay to the Husband $115,627.00.
3.That, following the parties compliance with paragraphs 1 and 2, the Wife shall indemnify and keep indemnified the Husband in relation to all rates, taxes and outgoings in relation to the home.
4. In the event that the Wife fails to comply with paragraph 2, the amount payable to the Husband shall carry interest at the rate prescribed from time to time by the Family Law Rules.
5. In the event of the Wife refusing or neglecting to comply with paragraphs 2 hereof, then the parties shall forthwith:
5.1Do all acts and things necessary to place the home on the market for sale by private treaty, in the event that the property remains unsold for a period of three (3) months from the date of these orders, then the home shall be sold by way of public auction within five (5) months from the date of these orders. In the event that the property remains unsold at auction the parties shall resubmit the home to public auction every four (4) months until sold.
5.2.Do all acts and things and execute all documents as are necessary to cause in the first instance by private treaty and thereafter by public auction a sale of the home including instructing a solicitor agreed by the parties, and in the absence of agreement a solicitor nominated by the president of the Newcastle Law Society upon joint written application of the parties, to act on the sale and listing the home for sale with a real estate agent agreed upon by the parties and in the absence of agreement with a real estate agent nominated by the President of the New South Wales Real Estate Institute upon joint written application by the parties.
5.3Upon a sale of the home cause the net proceeds of sale to be paid in the following order and priority:
5.3.1 Payment of agent's commission and valuation fees.
5.3.2 Payment of legal fees and rate adjustments.
5.3.3 Payment of any amount required to discharge any mortgage registered on title.
5.3.4 To pay to the Husband all amounts due to him pursuant to these orders;
5.3.5 To pay the balance then remaining to the Wife.
5.4That the sale price and the reserve price of the home be such amount as the parties agree and in default of agreement such amount as is advised by a valuer nominated by the president of the Australian Property Institute New South Wales Division on joint written instruction by the parties and with any expense of the value to be borne equally by the parties. Both parties must do all acts necessary to give effect to this Order including instructing the nominated valuer to conduct a valuation of the subject property, and in the case of a disputed reserve price this must be done within fourteen (14) days before any auction. Each party has the right to bid at the auction.
6. In accordance with paragraph 90MT(1)(b) of the Family Law Act, 1975:
6.1The Wife is allocated a base amount of $41,915.00 out of the Husband's interest in the [Starskey] Superannuation Fund; and
6.2 The Husband's entitlement in the [Starskey] Superannuation Fund is correspondingly reduced.
7.The Trustees shall do all such acts and things and sign all such documents as may be necessary to:
7.1Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement created for the Wife in paragraph 3 of these Orders; and
7.2Pay the respective entitlements whenever the Trustee makes a splittable payment out of the Husband's interest in the [Starskey] Superannuation Fund.
8. Paragraphs 6 and 7 of these Orders have effect from the operative time which the date of the making of these Orders.
9.After service by the Trustee of the payment split notice pursuant to r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994:
9.1The Wife shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations, 1994 for the transfer of the transferable benefits from the [Starskey] Superannuation Fund to a regulated fund of the Wife's choosing ("the Wife's new super fund"); and
9.2The Husband shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in his name in the [Starskey] Superannuation Fund.
10.Following the receipt by the Trustee of the elections made by the Husband and Wife as contemplated by paragraph 9, the Husband and Wife in their capacities as Trustees shall cause a meeting to be held in accordance with the Rules of the Superannuation Fund Trust Deed of the [Starskey] Superannuation Fund and in that meeting shall:
10.1 Authorise the transfer of the transferable benefits to the Wife's new super fund; and
10.2Authorise the consolidation of the Husband's interest in the [Starskey] Superannuation Fund.
11.In the event of any dispute arising between the parties in the exercise of their powers as Trustees of the [Starskey] Superannuation Fund, the parties shall appoint an arbitrator nominated by the President of the Institute of Chartered Accountants.
12.Pending the transfer of the transferable benefits from the Husband to the Wife:
12.1 Each party is restrained from dealing with, charging, encumbering or disposing of any of the assets of the [Starskey] Superannuation Fund other than in accordance with the terms of this order; and
12.2Each party shall immediately revoke any binding death benefit nomination already made and each party be and is hereby restrained from:
12.2.1Making any binding death benefit nomination in favour of a child described in regulation 13 of the Family Law (Superannuation) Regulations 2001;
12.2.2. Making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and
12.2.3Doing any such act or thing which would defeat, extinguish or reduce the entitlement of either party under this order.
13. Before the close of the meeting of the Trustee as contemplated by paragraph 10 of these Orders, the Wife shall do all such acts and things and sign all such documents as may be necessary to resign as a Trustee of the [Starskey] Superannuation Fund.
14. That unless otherwise specified in these Orders and as between the parties:
14.1 Each party be declared to be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank's record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and
14.2Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
15.That if either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these Orders the Registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act (or any provision replacing or amending same or make like or similar provision) to execute such documents on behalf of the defaulting party and that:
15.1 The Registrar do all necessary acts and things to give force and effect to these orders; and
15.2The defaulting party pay the costs of the other party on a solicitor/own client basis.

Affidavits

The wife relied on the following documents:
Affidavit of the wife sworn 2 February 2009 and filed 3 February 2009
Financial Statement of the wife filed 18 March 2008
The husband relied on the following documents:
Affidavit of husband sworn and filed 5 February 2009
Financial Statement of husband sworn and filed 5 February 2009

Short History

As at the date of the hearing the wife was 47 years of age and the husband was 48. They were married in December 1983 and separated on 2 April 2007. The parties are not divorced.

Children

There are two children of the marriage:
Swho was born in June 1991 and as at the date of the hearing is 17 years of age; and
Nwho was born in September 1994 and as at the date of the hearing is 14 years of age.

Background facts

In 1978 the husband commenced as a Trainee with B Company.
In early 1983 the parties purchased jointly the property at G.
In November 1983 the wife completed a Bachelor of Science Degree.
The parties were married in December 1983. The wife was then employed part-time as a Laboratory Assistant. The husband worked at B Company.
In February 1984 the wife took a full-time contract position as a Technical Officer.
In September 1984 the wife commenced work as a Research Assistant.
In February 1986 the wife commenced as a Scientific Officer.
In March 1987 the wife commenced a Graduate Diploma.
In July 1987 the wife was promoted to a relieving position as Senior Scientist.
In April 1989 the wife took 5 months leave without pay to accompany the husband overseas for his employment.
In late 1989 the wife re-commenced employment as Senior Scientist.
In December 1990 the wife completed the Graduate Diploma.
From June 1991 the wife took 12 months maternity leave. She organised the completion of renovations at the G property.
S was born in June 1991.
In 1992 the parties constructed a paved pathway to the front door at the G property.
In June 1992 the wife returned to work for 32 hours per week.
In June 1993 the wife resumed that position on a full-time basis.
In July 1994 the wife took maternity leave in anticipation of the birth of the child N.
N was born in September 1994.
The wife returned to paid employment on a part-time basis in September 1995. She started at 16 hours a week and after three months increased that to 20 hours a week. By September 1996 she was working 24 hours a week.
In September 1996 the wife organised to have the driveway replaced at the G property.
In August 1997 the wife negotiated a permanent part-time position at 24 hours a week and has retained that position since that time.
In 1997 the husband commenced a Certificate in Leadership and Diploma in Management and Leadership.
In September 1998 the wife stripped wallpaper and repainted the bathroom at the G property.
In February 1999 the parties sold the G property and purchased a property at D (the former matrimonial home).
In February 1999 the husband took redundancy from B Company. He asserts that he received $118,338.00 by way of redundancy payment and rolled over superannuation of $178,095.00. He worked through H Organisation.
In June 2000 the wife undertook extra contracts in addition to her permanent part-time position.
In September 2001 H Organisation failed and the husband commenced employment with local government.
In 2002 the husband commenced a Degree in Business Studies.
In April 2002 the parties purchased a unit at F. The husband’s mother moved into this property.
In November 2004 the wife’s mother gave her $3,300.
In 2005 the husband completed his Degree.
In December 2005 the wife’s mother gave her $3,300.
In April 2006 the husband saw a Psychologist.
In July 2006 the husband took stress leave and redundancy. He deposes to receiving $69,000.
In July 2006 the husband jack hammered the laundry floor. The wife designed a new laundry.
The parties separated in July 2006. The husband left the home and the children remained in the care of the wife.
In July 2006 the wife commenced a contract position one day a week as a Research Assistant. She continues in that role (in addition to her part-time position) to the date of the hearing.
In October 2006 the parties reconciled and the husband returned to the matrimonial home.
On 2 April 2007 the husband re-drew $47,500 in relation to the loan secured on the F unit and placed the money into his Newcastle Permanent Building Society account.
The parties separated in April 2007 when the husband left the former matrimonial home. He started to pay the wife $88.00 per week by way of child support.
In May 2007 the husband settled the purchase in his name of a property at C for $216,000. He borrowed $297,298.00 from Newcastle Permanent Building Society, repaid the mortgage of $77,213.89 on the F unit and $24,480.00 on the former matrimonial home. He paid a further $7,190.00 on the purchase, having already paid a deposit of $21,600.
In July 2007 the husband stopped paying child support.
In August 2007 the wife applied for an Administrative Assessment of child support.
From August 2007 to April 2008 the wife sold various shares and redeemed managed funds. She established an ING Direct account and a Macquarie Cash Management account.
On 18 February 2008 the husband sold Bluescope Steel shares for $25,959.
The wife commenced these proceedings by filing her Application on 18 March 2008.
The husband filed his Response on 1 May 2008.
The directions were made for the hearing on 18 September 2008 by Registrar Kearney.
On 16 October 2008 the parties entered into a Binding Child Support Agreement and Financial Agreement and Terms of Settlement which were an annexure to such agreement. The Terms of Settlement related to the property division of the parties. The child support aspect of the agreement was later accepted by the Child Support Registrar. I gather that the property aspects of the agreement were never submitted to a Court.
In November 2008 the wife’s mother died. The wife was a beneficiary of her estate. The wife’s interest in the estate is $144,038.
On 10 November 2008 the husband sold BHP shares receiving $12,680.

Credit and Submissions

The evidence of the witnesses

The only witnesses called for cross-examination were the parties. There are not many matters in issue that fall to be determined by reference only to the oral testimony of the parties.
The wife gave her evidence directly and with confidence. She readily made concessions in favour of the husband. For example, albeit that the husband’s contributions were not a large feature of her evidence in chief, she conceded that he did 50% of the cooking, that he did all of his own ironing, that he was involved with the children’s school work and school and extracurricular activities. She made the general concession that, during the periods when he was available, the husband made an equal contribution as parent and homemaker. She conceded that detailed expenditure estimates appearing at annexure C to her affidavit were not always supported by receipts and that she may have inappropriately attributed to the children a proportion of fixed household expenses that the wife alone would have had in any event – eg. Council rates.
The husband was a less satisfactory witness. He was vague on matters going back a few years. For example he had no recollection of seeing a particular health professional in 2002. His recollection of consulting a particular medical practice in May 2008 was not born out by the records of that practice. The issue arose on the first day of the hearing and he would presumably have been able to obtain the missing records, if there were such records, overnight.
No doubt the evidence each of the parties was coloured to some extent by their perceptions. I do not believe that either of them set out to mislead the court. Because of problems with the husband’s memory I prefer the evidence of the wife about historical matters.

Submissions

The written submissions on behalf of the wife are
Assets
1[D property] (Joint)  $530,000.00
2[F property] (Joint)  $155,000.00
3[C property] (Husband)  $215,000.00
4Toyota motor vehicle (Wife)  $13,000.00
5Subaru motor vehicle (Husband)  $17,000.00
6Furniture (Wife)  $6,500.00
7Furniture (Husband)  $1,500.00
8[Starskey] Superannuation Fund (self managed) (Husband) $329,105.00
9State Authorities non contributory Superannuation (Wife)     $22,607.00
10 State Authorities Superannuation Scheme (Wife)              $191,394.00
11 UniSuper Superannuation Scheme (Wife)  $2,931.00
12 Shares, Managed Funds and ING Direct account (Wife)      $91,324.00
13 Shares (Husband)  $339,031.00
Total Assets  $1,914,392.00
Liabilities
1Newcastle Permanent Building Society (Husband)            $148,500.00
2Newcastle Permanent Building Society (Husband)            $124,600.00
3Newcastle Permanent Building Society (Husband)              $21,700.00
Total Liabilities  $294,800.00
NET ASSETS             $1,619,592.00
Contribution Factors
The parties cohabited for approximately 24 years during which there were two children of the marriage.
The Wife’s contributions are summarised as follows:
1 The Wife was in gainful employment for most of the period of cohabitation only ceasing employment during periods coinciding with the birth of the two children and during the periods that the children were of tender years. The Wife contributed her income to the household expenses and the acquisition, conservation and improvement of assets.
2   The Wife was the major contributor as a homemaker and parent during the period of cohabitation.
3 The Wife has been the major contributor as a parent to the children since separation and during the period of separation during 2006.
4   The Wife’s mother made contributions on the Wife’s behalf of two gifts totalling $6,600.00.
5   The Wife contributed as a joint purchaser and borrower in respect of three properties.
6 The Wife made some direct and indirect non financial contributions to the improvements of the two properties in which the parties lived during the relationship (see paragraphs 80, 81, 82, 83, 84, 85, 88, 89 and 90 of Wife’s Affidavit).
7 Since separation the Wife has paid various expenses in respect of the former matrimonial home which she and the children have resided including rates and repairs.
8 Between separation and 2 February 2009, the Wife has spent not less than $48,752.00 on expenses for the children (see paragraph 99 and 128 and Annexure “C” to her Affidavit).
Factor’s under Section 75(2)
1 The Wife is in reasonably good health. The Wife is employed as a […] scientist and research assistant by […]. The Wife received approximately $948.00 per week gross.
2   The Wife has received some dividends from her shares but such income is expected to reduce.
3The Wife is entitled to Family Tax Benefits of approximately $60.00 per week.
4 The Husband is employed […] by [X Company] Pty Limited. The Husband allegedly receives $836.00 per week gross.
5 The Wife has the continuing care of the two children of the marriage. Both children have extensive activities and expenses and the Wife is required to provide considerable assistance to the children. The Wife outlines in paragraphs 130 to 136 the children’s activities and her responsibilities.
6 The Wife is entitled to an inheritance which she expects to be in the vicinity of $142,000.00 from her mother’s estate. Her mother died in November 2008 and the quantum of such payment will depend upon the amount for which her mother’s home sells.
7 The Wife believes that the Husband is a beneficiary of his mother’s Will. His mother is still alive. She is approximately 77 years of age. He is one of 3 siblings (as is the Wife) and he would expect to receive a one-third share of her estate which includes a property at [W].
8 The parties agreed on 16 October 2008 to a Binding Financial Agreement whereby the Husband will pay $79.33 per week for each of the children. That agreement was conditional upon the Terms of Settlement which is Annexure “A” to the Financial Agreement. These Terms of Settlement were signed by the parties, however Orders have not been made by this Court. The Wife would not have agreed to the Financial Agreement if the Terms of Settlement were not to be implemented.
9 During part of the marriage at least the Husband was addicted to gambling. The Husband redrew $47,500.00 at the time of separation. It is likely that he has used approximately $17,500.00 of this for gambling. Since separation the Husband has sold shares worth approximately $26,000.00 with Bluescope. The Husband has apparently lent $16,000.00 to his girlfriend [Ms K] and spent the balance of approximately $10,000.00 on gambling. Prior to separation the Husband wasted money on gambling. Annexure “A” and “B” to the Wife’s Affidavit identifies withdrawals made between 7 January 2005 and 2 August 2006 which the Husband has probably spent approximately $20,000.00 on gambling. The court would otherwise make a general adjustment to the Wife for the likelihood that the Husband has wasted further money on gambling.
In oral submissions for the wife it is her case that she should be accepted on each of the add back issues. Thus she argues:

The husband should be credited with $17,500 (rather than just the $12,500 that he concedes he gambled in 2007) reflected in increases in the F property mortgage because of $5,000 the husband says he applied to the mortgage secured on the C unit. It is the wife’s case that there is no evidence that the payment increased the equity in the unit rather than simply representing mortgage instalments in advance;
The husband should be credited with $25,959 being the proceeds of sale of Bluescope Steel shares (rather than just the $16,000 he loaned to Ms K) because he had the use of that money, to the exclusion of the wife;
The husband should be credited with $12,680 being the proceeds of sale of BHP shares (rather than just the $10,300 he spent on his legal fees) because he had the use of that money, to the exclusion of the wife;
From the proceeds of the sale of Alinta shares, drawings on the Macquarie Cash Management Account and on a Colonial First State Account made by the wife, she should be credited with only $12,759 (spent on legal fees) rather than the entire proceeds of $17,051. The lap top at $2003 was bought for the use of the children and the wife and should be excluded; $534 was the cost of the hearing fee for these proceedings; and $1,755.69 spent on a financial adviser is in effect the price of the wife’s share portfolio income. It is submitted that just as the stamp duty the husband paid on the C property was part of the cost of its purchase, this fee should not be added back;

Thus the wife argues that the pool is a net $1,688,665 made up of $1,437,245 in non superannuation assets, $295,608 in debts and $547,028 in superannuation.
It is submitted for the wife that the assets should be treated globally for the assessment of contributions, which are submitted to be equal. The husband made a greater initial contribution but the parties each had paid employment. The wife had more of the parent and homemaking with the husband in full-time employment and travelling. The husband caused undisclosed loss through gambling. It is argued that there should be a 5% adjustment to the wife because the husband has a greater earning capacity; she has the greater financial and parenting load associated with the children; she wants to be available to them one day a week and the her inheritance can be set off against the husband’s expectations as sole beneficiary of his 81 year old uncle’s will and a possible benefit under his mother’s will.
It is submitted that it is within my discretion to make a greater adjustment out of non-superannuation assets rather than superannuation. The wife seeks about 50% by way of super split and that the remaining assets be left where they are. That would leave the wife about $1,000 short, which is a just and equitable outcome.
The written submissions on behalf of the husband are:
CONTRIBUTIONS
1.        Direct financial:
The Respondent made initial direct financial contributions by way of the 1^st matrimonial home which was purchased shortly before marriage with the deposit paid from his savings of $15,000.00. He was the owner of a motor vehicle and a small amount of furniture and furnishings. Additionally he had a period of employment period to marriage which qualified him for Long Service leave and proportional redundancy entitlements which vested on retrenchment during the marriage and moneys received were contributed, in part, to the acquisition, conservation and preservation of the assets of the parties. He also accumulated and contributed pre-cohabitation superannuation entitlements of approximately $45,000.00 (Exhibit ‘E’ to Husband’s Affidavit) which sum was eventually rolled over and now forms part of the husband’s interests in the [Starskey] Superannuation Fund.
During the marriage the respondent contributed his earnings from employment to the payment of outgoings, including repayment of borrowings. His earnings during the marriage were greater than those of the applicant.
Post separation the husband has continued to make all loan/mortgage repayments for the parties (para 41, 42 and 43 of the husband’s affidavit). He has also attended to paying rates, strata fees, repairs and maintenance costs in relation to both the [F] and [C] properties. Each of the parties contributed $1,250.00 to the purchase of a motor vehicle for [S].
2.        Indirect financial:
The respondent worked on the improvement and maintenance of properties owned by the parties. He completed Tertiary Education qualifications and applied that knowledge, together with his knowledge and skills acquired prior to and during his first employment, to the management of the parties finances, including the establishment and subsequent management of a self managed superannuation fund and share portfolios for both parties.
3.        Home maker and parent:
The respondent made contributions by way of care for and supervision of the two children of the marriage, both solely and sharing and assisting the applicant, attended the children’s schools for parent teacher interviews, assisted them with schoolwork and facilitated and participated in their extra curricular activities.
RELEVANT 75(2) FACTORS
a.        The respondent is aged 48 years. Whilst he enjoys general good health he has been diagnosed and treated for anxiety and/or depression and has previously taken prescribed medication. His condition has affected his working capacity, being the direct cause of his inability to undertake management roles and resulting in his now being employed on a casual basis only.
The applicant is aged 47 and, so far as the applicant is aware, enjoys good health.
b.        The respondent’s earnings, property and financial resources are as set out in his         financial statement, filed herein, subject to alterations as now appear in the joint          statement of assets and liabilities, filed separately. He has a contingent CGT liability    in relation to his share portfolio of approximately $50,000.00.
The respondent is employed a casual basis only, consequent upon his medical condition, which is long standing.
The applicant is employed permanent part time only but has qualifications and experience such that she could seek full time employment, which is available.
The applicant has filed a financial statement setting out her earnings, assets and liabilities. She has an additional financial resource of a one third interest in her late mother’s estate, shortly to vest and estimated at not less than $144,000.00.
c.        There are two children of the marriage, aged 17 and 14, who resides, for the most part with the Mother and spend substantial and significant time with the Father.
d.        The respondent’s commitments necessary to enable him to support himself, and the two children, are as set out in his financial statement filed herein.
e.        Neither party is responsible for the support of any other person, save the children.
f.         Neither party has an entitlement to any pension or benefit, save such benefits as is paid to parents of dependant children. Neither has present super entitlements but both have substantial interests in super funds, as detailed in the joint statement.
g.        Both parties enjoyed a reasonable lifestyle during the marriage and anticipate continuing to do so, the husband perhaps to a lesser degree consequent upon his state of health.
h.        Not relevant.
ha.      Not relevant.
j.         The respondent assisted the applicant in obtaining educational qualifications to enable her to obtain more highly paid employment.
k.        Not relevant
l.         Both children are of an age whereby they are to a large extent able to look after themselves with minimum supervision, thus enabling the mother, in particular, to pursue full time employment.
m.       The respondent is not cohabiting with any other person.
n.        To be filed separately. The husband proposes that the wife retain:
(a)      [D property];
(b)      her share portfolio;
(c)      her motor vehicle;
(d)      her furniture and furnishings;
(e)      her investments;
(f)       her inheritance from her mother’s estate.
He further proposes:
(i)that the wife pay him the sum of $115,627.00.
(ii)that he retain the properties at [F] and [C];
(iii)that he retain his furniture and investments together with the loan due by [Ms K];
(iv)that he retain his motor vehicle;
(v)that he re-finance and assume responsibility for the parties’ 3 loans with the Newcastle Permanent Building Society.
In relation to superannuation he proposes that there be a splitting order in the wife’s favour with a base amount of $41,915.00 to be paid from his self-managed fund.
na.The parties have reached an agreement in relation to the father’s provision of child support which has been accepted by and registered with the C S A, which includes a provision for the father to pay child support for the children presently and on their attending tertiary studies. The rate of child support exceeds the last assessment issued to the husband.

In oral submissions for the husband it is his case that he should be accepted on each of the add back issues. Thus the husband argues:

The husband should be credited with $12,500 (rather than the $17,500 pressed for the wife) reflected in increases in the F property mortgage because the additional $5,000 was applied to the mortgage secured on the C unit.;
The husband should be credited with just the $16,000 he loaned to Ms K (rather than the entire $25,959 being the proceeds of sale of Bluescope Steel shares because the money was used for his living expenses and should not be added back;
Of the proceeds of sale of BHP shares the husband should be credited with the $10,300 he spent on his legal fees rather than the entire proceeds of $12,680 because that money was used for his living expenses;
The wife should be credited with $17,051 from the sale of Alinta shares, drawings on the Macquarie Cash Management Account and on a Colonial First State Account (rather than just the $12,759 conceded by the wife as spent on legal fees). The wife apparently has the use of the lap top at $2003; $534 was payable by her as the applicant for the hearing fee for these proceedings; and $1,755.69 spent on a financial adviser was for her benefit.

Thus the husband submits the pool is a net $1,6756,618 made up of $1,428,198 in non superannuation assets, $295,608 in debts and $547,028 in superannuation.
It is submitted for the husband that the assets should be treated globally. The husband argues for an overall division 52.5% in his favour and 47.5% to the wife. The husband does not mind whether that is based on equality of contribution and an adjustment to him for the non-contribution matters or a balance of contribution that favours him and no adjustment. He seeks that the calculation be reflected against both superannuation and non-superannuation assets. The wife has liquid assets and can make the payment sought and it is argued there is no reason to make a different adjustment for superannuation and non-superannuation assets. It is submitted that the husband has a need for capital as it would help him pay down his debts, which include borrowings on the negatively geared F property.

The approach in proceedings under section 79

The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]
[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.

The property of the parties at the date of the hearing

The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30]    To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)      Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b)      Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c)       In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)      where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)      where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
The parties have settled a joint balance sheet but the following issues remain to be determined:

Add back for an increase in the F property mortgage

The wife argues that the husband should be credited with a preliminary distribution of $17,500 in the form of an increase caused by him in the amount owing on the F property mortgage. The husband concedes that he should be credited with the $12,500 that he gambled in 2007. The difference is $5,000 the husband says he applied to the mortgage secured on the C unit. It is the wife’s case that there is no evidence that the payment increased the equity in the unit rather than simply representing the payment of mortgage instalments in advance.
The husband had the benefit of $17,500 by way of a redraw on a loan after separation. At issue here is whether he can account for the application of $5,000 of that amount. The husband’s affidavit is somewhat confusing because he deposed at paragraph 40 to making a transfer of funds on 2 August 2007. As the annexure to his affidavit makes clear, and as the wife asserts, the redraw was made on 2 April 2007.
I think the sequence was this. The parties’ housing loan was increased by $47,500 by the husband in April 2007 and he deposited that advance into his savings account. In May 2007 the husband bought the C unit for $216,000 and extended the parties borrowings to a total of $297,000 to discharge the loans secured on F property, the former matrimonial home and their investment loan. The new borrowings were in the form of one loan of $150,000 secured on the C property (No. …8), one of $125,000 (No. …6) secured on the F property and one of $22,000 (No. …1) being an investment loan for the purchase of shares. From the $47,500 the husband thinks he gambled $12,500 and the rest he applied to the purchase of the C property. It sounds like he borrowed more than he needed and paid $5,000 back into the C property mortgage on 17 May 2007. The agreed fact is that the C property loan (No. …8) stands at $147,652. The husband says that the instalments on that loan are $980 per month. The husband deposes in his latest Financial Statement to making payments at a greater rate than that ($245 per week). But for $15 per week the husband’s weekly budget appears to balance. Therefore I take it that he makes the payments identified in his Financial Statement. The principal on the loan has been reduced from $150,000 to $147,652 between May 2007 and February 2009. It likely that the $5,000 payment in question was not a payment in addition to regular payments of principal and interest on the loan. In other words, the payment was not in addition to the recurrent mortgage instalments.
It falls to the husband to account for his application of joint funds. He has not accounted for the application of the $5,000 in the sense that it appears to have been in lieu of periodic mortgage instalments. I will add back $17,500 to the list of assets held by the husband.

Add back for the proceeds of sale of Bluescope Steel shares

The wife argues that the husband should be credited with a preliminary distribution of $25,959 being the proceeds of sale of Bluescope Steel shares. The husband concedes that he should be credited with the $16,000 he loaned to his friend, Ms K. It transpires that the loan is repayable with interest and that Ms K is in advance of the payment schedule agreed between herself and the husband.
The husband had the use of all of the $25,959. As I understand his case, he says that $16,000 was lent to Ms K, $5,000 was paid off his Visa card debt in February 2008 and the balance of $4,959 was applied to living expenses. Lest it be argued that the Visa card debt was a joint debt, the parties have agreed that the husband’s credit card debt at the date of separation was $1,320 and that debt is to be included in the list of relevant liabilities going to make up the net assets for distribution. Thus the $5,000 payment off his Visa card was related to post separation expenditure. At the end of the day the husband had the benefit of $9,959 of joint funds after separation. He did not have a weekly shortfall of income over outgoings which could account for that sum. It falls to the husband to account for his application of the funds. I will add back $25,959.

Add back for the proceeds of sale of BHP shares

The wife argues that the husband should be credited with a preliminary distribution of $12,680 being the proceeds of sale of BHP shares. He concedes that he should be credited with the $10,300 he spent on his legal fees. The husband had the benefit of $12,680 of joint funds after separation. He did not have a weekly shortfall of income over outgoings which could account for that sum. It falls to the husband to account for his application of the funds. I will add back $12,680.

Add back for the proceeds of sale of Alinta shares, drawings on the Macquarie Cash Management Account and on a Colonial First State Account

The husband argues that the wife should be credited with $17,051 being the proceeds of sale of Alinta shares, drawings on a Macquarie Cash Management Account and on a Colonial First State Account. The wife concedes that she should be credited with $12,759 spent on legal fees from that source.
The difference between those sums is represented by $2003 spent on a lap top for the use of the children and the wife; $534 applied to the hearing fee for these proceedings; and $1,755.69 spent on the wife’s financial adviser. The submission on behalf of the wife is that the Financial Adviser’s fee is in effect the price of the wife’s share portfolio income. It is submitted that just as the stamp duty the husband paid on the C property was part of the cost of its purchase, and no submission was made on behalf of the wife to add that amount back, this fee should not be added back. With respect there is something in that argument.
Subject to any costs award, the hearing fee has been to the benefit of both parties and it will not be added back. The evidence about the notebook computer is that the wife bought it for her use and that of the children. As between the parties, the husband has had no benefit from the computer. There is no evidence to the effect that the wife brings the computer to account in her estimate of the value of her personalty. I will add back its value to the list of assets. Thus I will read back to the credit of the wife $14,762.

I find that the assets are:

Assets Value

D property – joint

$530,000

Shares – wife’s name[i]

$86,589

Toyota Corolla – wife’s motor vehicle

$13,000

Wife’s contents

$6,500

SASS – wife

$192,385

SANCS – wife

$22,607

Uni Super - wife

$2,931

Add back for the proceeds of sale of Alinta shares, drawings on the Macquarie Cash Management Account and on a Colonial First State Account wife

$14,762

F property – husband

$155,000

C property – husband

$215,000

Husband’s contents

$1,500

Shares – husband’s name[ii]

$339,031

Starskey Superannuation Fund

$329,105

Add back for an increase in the F property mortgage - Husband

$17,500

Add back for the proceeds of sale of Bluescope Steel shares - Husband

$25,959

Add back for the proceeds of sale of BHP - Husband

$12,680

Total $1,964,549.00

Liabilities:

The parties agree that the relevant liabilities are:

Liabilities Amount

NPBS (account no. …8)

$147,652

NPBS (account no. …6)

$124,649

NPBS (account no. …1)

$21,470

Credit cards at separation – Husband

$1,320

Credit cards at separation – Wife

$517

Total $295,608.00

Net assets

The net assets have a value of $1,668,941 ($1,964,549 - $295,608). Of that total there is $547,028 in superannuation.

Financial Resources

The wife has an interest in the estate of her deceased mother. That inheritance is agreed at $144,038 and has vested or will soon vest.

Contributions

The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
[2] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[3] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
Here the case has been argued on the basis of one pool. On that basis, I will also deal with the assets globally.

Contributions

Section 79(4)(a) Contributions

Financial contributions, both direct and indirect were made by each of the parties.
The husband made a greater financial contribution, he brought into the marriage $15,000 and a superannuation interest. That initial injection is conceded at a total of about $88,000.
The parties each had paid employment. The wife’s income earning was interrupted by maternity leave and in the later years was on a part-time basis.
The husband received a second redundancy payment in 2006. He received $69,000. That payment reflects a benefit from employment with the public service, which employment was wholly with the period of the marriage.
The wife’s mother made contributions on the wife’s behalf in the form of two gifts totalling $6,600.
Once the amounts referred to above are added back, the husband’s post separation contribution in removing the mortgage impost on the home and leaving the wife and children to quiet enjoyment of that property must be recognised. The wife paid for some maintenance and improvements to the home after that separation.

Section 79(4)(b) contributions

This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
From the early 1990’s the husband managed the family finances and later organised the establishment of their superannuation fund. The husband managed the F property for the parties. The wife argues that the effect of that investment in the early days was to subsidise the husband’s mother’s accommodation. The property was later rented at a commercial rent. Whatever the impact of the husband’s mother being in the property for a period, the husband managed the tenancies, collected the rents, paid the outgoings and was the Chairman and Treasurer of the relevant strata committee.
At the G property the husband built retaining walls and gardens. He painted inside and outside. He relined internal walls, renovated the bathroom and replaced windows. At the former matrimonial home he attended to landscaping, maintenance and painting. At the F property he attended to painting and general maintenance.
The wife designed the gardens at the G property and the parties landscaped the yard. The wife propagated native plants for the garden. The wife liaised with architects for renovations in about 1990. The parties undertook renovations between 1991 and 1994 and with the husband travelling overseas, the arrangements with contractors and monitoring their work, fell largely to the wife. The parties repainted the interior of the property and the wife designed and sewed window treatment for the bedroom.

In 1992 the parties constructed a paved pathway to the front door. In 1996 the wife organised a replacement driveway and for an automatic garage door.
In 1998 the wife stripped wallpaper and repainted the bathroom.
The wife organised the agents and solicitors in relation to the sale of the G property and the purchase of the former matrimonial home. This was done in part while the children had chicken pox and the husband was overseas.
In 2002 the wife arranged for plans for a new kitchen. The parties and the children painted the renovated kitchen. In April 2004 the entire family painted three bedrooms of the house.
The husband jack hammered the laundry floor and the wife designed a new laundry, chose the finishes and supervised the tradesmen.
Each of the parties made non-financial contributions. They worked together on some projects and undertook different roles on others. Their contributions were similar.

Section 79(4)(c) contributions

This provision deals with contributions in the form of parent and homemaker contributions.
I am satisfied that the wife undertook the main parenting and homemaker role.
The wife conceded that when he was available, the husband equally shared those duties. The fact is however, that the husband generally had full-time paid employment compared to periods of maternity leave and part-time paid employment for the wife. In 2003 the husband worked three days a week in Sydney and sometimes stayed there overnight. In addition the husband had periods of overseas travel with his employment. He says that was 10 to 15 trips of up to 3 weeks at a time, over a period of five years. The wife says it was about 30 trips of up to three weeks at a time, over a period of 10 years. I am more inclined to the wife’s estimate than that of the husband because her memory seems more reliable than his. In any event the common ground position is that the parties’ arrangement had the wife more available to the children and the household than the husband.
There were some testing issues for the children and therefore particularly for the wife. Both girls require glasses. Both girls had orthodontic work. The wife volunteered at school reading groups, assisted with the art work for school drama productions, covered books for the library and organised activities for the school community. The wife accompanied the children on school excursions and provided transport to local, zone and area swimming carnivals. N needed assistance with reading and the wife attended on a Speech Pathologist and learned how to implement programs for her at home. At 8 years of age N suffered bed wetting at night and the wife attended to a referral to a Continence clinic and upon her teachers to regulate her water intake and toilet breaks at school. In 2006 N was diagnosed with Scoliosis. The wife attended with her on a GP.
The wife made a greater contribution by way of parent and homemaker, than did the husband.

Conclusion on Contribution

The husband made a greater financial contribution. He brought in $15,000 and a superannuation interest. The wife concedes that was a total of about $88,000. The parties each had paid employment. The husband’s income was generally on a full-time basis whereas the wife’s income earning was interrupted by maternity leave and part-time employment.
The non-financial contributions were shared. The wife had more of the parent and homemaking with the husband in full-time employment and travelling.

Waste

The wife argues that the husband’s contribution was diminished by his gambling.
The husband wasted matrimonial funds by gambling on poker machines. That is an agreed fact. The husband says that the impact is entirely reflected in the concession he makes for an add-back of $12,500 for gambling in the year 2007. The wife asserts that the waste occurred from 2002 to separation. It is not possible to know how much was lost. The wife has identified $14,730 between 7 January 2005 and 30 December 2005 and $5,060 between 5 January 2006 and 2 August 2006 as having been withdrawn by the husband on family accounts at premises licensed for gambling. Separation occurred in April 2007. Apart from the period from July to October 2006 any waste prior to April 2007 occurred during cohabitation. That would presumably reduce the opportunity for the application of funds at those premises for reasons other than gambling. It is more probable than not that the husband gambled beyond the $12,500 conceded in his case. It is not possible to put a figure on the losses but his concession gives some indication of the rate at which funds could be lost.
This was a long marriage involving very considerable contributions. The submissions of the parties reflect a tight range of dispute between the parties. I find that the various contributions of the parties would properly be acknowledged by a finding that they were made in equal proportions.

The other matters in Section 79

Once contributions have been assessed, the other factors in section 79(4) need to be considered. They are:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no relevant effect.

Section 79(4)(e) - Section 75(2) Factors

The relevant matters in Section 75(2) would seem to be paragraphs (a), b), (c), , (k), (l), (na) and (o).

(a) the age and state of health of each of the parties;

First, as to the age and state of health of each of the parties. The wife and husband are 47 and 48 years of age, respectively. There is no expert evidence about the health of either party. The husband has been treated for anxiety and depression for some years. In about 2006 Dr W prescribed Effexor and the husband has taken various doses since then. On his doctor’s advice concerning the effects of long term usage, the husband came off Effexor in 2008. There is no evidence from his treating doctor. That said, the wife agrees that the husband received this treatment.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The wife’s income is $1,258 per week made up of $840 by way of salary as a part-time (3 days a week) scientist, $195 from her salary as a part-time (1 day a week) Research Assistant, $100 in share dividends, $60 by way of a Family Tax Benefit and $63 in child support. The figures come from the wife’s Financial Statement. The last mentioned figure is probably wrong given the husband’s evidence and the rate fixed by the child support agreement.
The wife lives in the former matrimonial home with the parties’ children. S earns $100 per week as a Check Out Operator. She applies that money to running her car.
The wife’s fixed expenses are set out in her Financial Statement. It is a document from 12 months ago. Her wages and therefore her tax have increased. She gave updating oral evidence about the PAYG tax paid on her wages ($115 and $32 per week respectively) but no evidence about the impact on her tax overall. Doing the best I can the wife’s fixed expenses are as follows:

Expense Amount

Income tax $198.00

Superannuation contributions $89.00

Rates $23.00

Comprehensive car insurance NRMA $10.00

Home and contents insurance NRMA $20.00

Motor vehicle registration $10.00

Total $350.00

Even without the errors about child support and income tax the wife has a weekly surplus of about $900 to live on.
Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
As to her earning capacity, the wife likes to work 4 days a week so as to be available for the girls each Thursday. She conceded that they do not have chronic health problems and not every Thursday is taken up with their appointments. She conceded that the husband could take up the load in getting the children to any necessary appointments and in any event, S drives and would be able to assist in getting herself or her sister to appointments. She concedes that full-time jobs in her field have been advertised with her own supervisor as the contact person. She has not applied for such a position. Therefore the wife has a greater earning capacity than she currently exercises. She thinks that an additional day would result in a pro rata increase in her income.
The husband earns $1,165 made up of his wages of $850 per week for X Company Pty Ltd, $155 per week by way of rent on the F property and $160 per week in dividends on shares. He lives alone.
The husband puts his expenditure as follows:

Expense	Amount
Income tax	$162.00
Mortgage payments Newcastle Permanent Building Society # …8	$245.00
Mortgage payments Newcastle Permanent Building Society # …6 on F property	$174.00
Mortgage payments Newcastle Permanent Building Society # …1 on C property	$40.00
Rates levies and outgoings on F property	$61.00
Rates levies and outgoings on C property	$60.00
Insurance premiums	$20.00
Motor vehicle registration Subaru	$10.00
Child support	$158.00
Master card X 2 – CBA; Newcastle Permanent Building Society	Not Known
Food clothing and household expenses	$250.00
Total	$1180.00

The husband is not fully exercising his earning capacity. It is his case that he now works as a casual supervisor. In November last he was terminated from the position of General Manager with the same employer. Has an average of 2-4 days a week in his new role. The proportion of his duties of a supervisory nature has been reduced to nil. He says he could work 5 days a week at his current level of responsibility. His employer does not have enough work to give him a full-time position and he last looked for a job in November 2008. He has not seen an advertisement for a job in his profession in 6 years.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The children are 17 & 14 years of age. They attend High School in Years 12 & 9 respectively. There are a few years until N turns 18. The children spend time with the husband each alternate weekend from Saturday morning to Monday morning and from Monday night to Wednesday morning in the intervening weeks. Therefore, the wife gets some parenting support from the husband.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and
a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have set out the evidence in relation to the parties’ expenses.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;

As is recorded above, the wife receives the Family Tax Benefit. The parties have interests in superannuation funds.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is little evidence in relation to the standard of living of the parties during the marriage.

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

The parties are highly qualified and there is no evidence of either planning further study or intending to set up in business.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

This is not a significant aspect of the case.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

The wife undertook the main parenting role and that allowed the husband to maintain employment on a full-time basis. However, it appears that the fruits of that work history are no longer available to the husband.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The wife has a Bachelor of Science and a Graduate Diploma. The husband has a Bachelor of Business Studies in addition to his professional qualification. In each case the parties’ second qualification was gained during the marriage. The parties’ arrangement had the wife taking the main parenting role and leaving the husband to pursue full-time employment. His job took him away from home for periods. It is likely that the marriage restricted the wife’s earning capacity in the sense that she was not able to continue a progression in her field and presumably lost the benefits of a long history of full-time employment such as long service leave and opportunities for promotion.

(l) the need to protect a party who wishes to continue that party's role as a parent;

This is the wife’s case. It is likely that the wife could take full-time employment. However, she wants to be available to the girls on Thursdays. One would not seek to understate the complexity of the parenting task in respect of teenagers but it must be said that the aspects of the parenting role that call for close supervision no longer apply. It would be possible for the wife to have full-time employment.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

I have set out that evidence above.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

The parties entered into a Child Support Agreement which was accepted by the Registrar on 9 December 2008. Pursuant to that agreement the husband is to pay the wife $79.33 per child per week. The agreement also provides that the husband will pay direct to either child $100 per week for the period during which that child completes her first tertiary qualification.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;

Whereas the wife has received an inheritance, the husband is the sole beneficiary under his uncle’s will. His uncle owns a property. The husband does not know if he is named in his mother’s will. Thus the husband has some expectation but there is great uncertainty as to the timing or value of any bequest.

(p) the terms of any financial agreement that is binding on the parties.

I have referred above to the child support agreement. Otherwise there was no binding agreement made between the parties.

Section 79(4)(f)

There are no other relevant orders made under the Family Law Act 1975.

Section 79(4)(g)

I have referred to the child support position.

Conclusion

The wife seeks a 5% adjustment under section 75(2). The husband’s position in not specific on this issue. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:

ØThe parties are in a similar financial position. The parties do not fully exercise their earning capacities. The history of the marriage suggests that if healthy, the husband has the greater capacity. As things stand the parties have similar incomes and similar needs;
ØThe husband’s health is qualified but there is no evidence of any consequences except in relation to the husband’s paid employment, and then only from him. The wife concedes that the husband has been treated for anxiety;
ØWife has the children with her for a greater proportion of the time;
ØThe wife has a vested inheritance. The husband has some expectations but it could be some years before he receives anything and the value or significance of the expectation is unknown.

These matters call for countervailing adjustments but taken together, in my view, they warrant no adjustment from the distribution based on contributions alone. The 5% adjustment sought by the wife would represent over $80,000 and a difference in the final property distribution of twice that sum. Such an adjustment, or indeed any adjustment of real significance would prevent proper allowance for over 23 years of contributions.

Just and Equitable

The wife seeks that more of her settlement be reflected in non-superannuation assets than in superannuation. In amending the Family Law Act 1975 to permit the splitting of superannuation payments the Parliament has indicated a preference for dealing with superannuation in that way. Over recent years Government policy has included encouragements to individuals making better provision for self-funded retirement.
There are advantages and disadvantages to superannuation interests. They cannot normally be accessed before the member reaches a certain age and leaves the workforce. The Court can take judicial notice that of recent times many superannuation funds have made a loss. Thus it can be unfair to require one party to retain a disproportionate amount of the superannuation interests and the other to retain a disproportionate amount of the non-superannuation assets.
On the other hand, the Court can take judicial notice of the fact that preferential treatment is afforded to assets and income in the form of superannuation after 60 years of age and that ameliorates the disadvantages of taking funds in the form of superannuation compared to accessible assets.
In those circumstances, the Court would not lightly leave one party with most of the superannuation interests and the other with mostly non-superannuation assets.
It is within my discretion to make a greater adjustment out of non-superannuation assets rather than superannuation for one party but there is simply no reason to do so here.
The net assets have a value of $1,668,941 ($1,964,549 - $295,608). Of that total there is $547,028 in superannuation. An equal division would leave each of the parties with about $834,470.50 made up of $560,956.50 in non-superannuation assets and $273,514 in the form of superannuation.
The parties both seek that the wife retain the former matrimonial home. Thus the wife will have or has had the benefit of :

Assets Value

D property – joint

$530,000

Shares – wife’s name

$86,589

Toyota Corolla – wife’s motor vehicle

$13,000

Wife’s contents

$6,500

Add back for the proceeds of sale of Alinta shares, drawings on the Macquarie Cash Management Account and on a Colonial First State Account wife

$14,762

Minus Credit cards at separation – Wife

-$517

Total $650,334.00

In order to bring her to 50% she should pay the husband $89,377.50. The wife will also owe any current personal debts, including her legal fees.
That would leave the husband with the following non-superannuation assets:

Assets Value

F property – husband

$155,000

C property – husband

$215,000

Husband’s contents

$1,500

Shares – husband’s name[1]

$339,031

Add back for an increase in the F property mortgage - Husband

$17,500

Add back for the proceeds of sale of Bluescope Steel shares – Husband

$25,959

Add back for the proceeds of sale of BHP – Husband

$12,680

Payment from the wife

$89,377.50

NPBS (account no. …8)

-$147,652

NPBS (account no. …6)

-$124,649

NPBS (account no. …1)

-$21,470

Credit cards at separation – Husband

-$1,320

Total $560,956.50

As to superannuation, the parties’ interests are:

Assets Value

SASS – wife

$192,385

SANCS – wife

$22,607

Uni Super - wife

$2,931

Starskey Superannuation Fund

$329,105

Total $547,028.00

Of those interests the wife has control of $217,923. She would need a further $55,591 to bring her to 50% of the superannuation interests. I will order a split of the husband’s fund on that basis. Otherwise the parties will retain their superannuation interests.
The orders I propose commit the wife to make a payment to the husband and that will presumably call on her inheritance. Nevertheless, in my view those orders represent a just and equitable settlement of the parties’ property.

Conclusion under Section 79

This was a long marriage involving very significant contributions by each of the parties. They acquired assets and provided a secure home for their daughters. In the course of over 23 years of cohabitation and since, the parties shared the work of the family in different ways but overall the contributions were equal. No further adjustment is required by reference to the non-contribution aspects of Section 79(4).

I certify that the preceding one husband and sixty four (164) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate:

Date: 20 February 2009

Key Legal Topics

Areas of Law

Family Law
Equity & Trusts

Legal Concepts

Remedies
Injunction
Fiduciary Duty
Constructive Trust
Jurisdiction
Procedural Fairness

Actions

Download as PDF Download as Word Document

Citations

Baker & Starskey [2009] FamCA 195

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

1

Norbis v Norbis [1986] HCA 17

Assets	Value
D property – joint	$530,000
Shares – wife’s name[i]	$86,589
Toyota Corolla – wife’s motor vehicle	$13,000
Wife’s contents	$6,500
SASS – wife	$192,385
SANCS – wife	$22,607
Uni Super - wife	$2,931
Add back for the proceeds of sale of Alinta shares, drawings on the Macquarie Cash Management Account and on a Colonial First State Account wife	$14,762
F property – husband	$155,000
C property – husband	$215,000
Husband’s contents	$1,500
Shares – husband’s name[ii]	$339,031
Starskey Superannuation Fund	$329,105
Add back for an increase in the F property mortgage - Husband	$17,500
Add back for the proceeds of sale of Bluescope Steel shares - Husband	$25,959
Add back for the proceeds of sale of BHP - Husband	$12,680
Total	$1,964,549.00

Liabilities	Amount
NPBS (account no. …8)	$147,652
NPBS (account no. …6)	$124,649
NPBS (account no. …1)	$21,470
Credit cards at separation – Husband	$1,320
Credit cards at separation – Wife	$517
Total	$295,608.00

[2009] FamCA 195

20 February 2009

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Injunction

Fiduciary Duty

Constructive Trust

Jurisdiction

Procedural Fairness