Chappell & Chappell - [2021] FamCA 220

FAMILY COURT OF AUSTRALIA

Chappell & Chappell [2021] FamCA 220

File number(s):	MLC 5402 of 2018
Judgment of:	HARTNETT J
Date of judgment:	24 June 2021
Catchwords:	FAMILY LAW – PROPERTY – Assessment of s 75(2) of the Family Law Act 1975 – is it just and equitable to adjust property interests of the parties - marriage of approximately 24 years – where the wife made greater initial contributions – where both parties made financial contributions during cohabitation – assessment of contributions - competing applications by parties for final property orders - valuations of properties - whether the wife or husband retain the G Street property – whether the Court places the G Street property on the open market – both parties have sentimental attachment to G Street property – the division and ownership of sculptures at G Street – parties unable to reach compromise about sculptures – valuation of the husband’s golf membership shares in issue between the parties – LL Inc. private company, shareholdings of the wife – gift to the wife from her father – value of LL shareholding not of importance – value of LL shareholding not placed in the asset pool – husband’s legal costs – husband’s legal costs paid out of DD Firm pre-separation income – the wife’s loans to meet necessary living costs and expenses totalling $2.5 million in total - assessment of contributions and future needs- orders to be made.
Legislation:	Evidence Act 1996 (Cth) s 140 Family Law Act 1975 (Cth) ss 72, 75(2), 79, 81, 121. Family Law Rules 2004 (Cth) r 17.02
Cases cited:	Bell & Nahos [2016] FamCAFC 244 Bevan & Bevan (2013) FLC 93-545 Dickons & Dickons [2012] FamCAFC 154 GBT v BJT [2005] FamCA 683 Jabour & Jabour [2019] FamCAFC 78 Mallet v Mallet (1984) 156 CLR 605, 608 Stanford v Stanford (2012) 247 CLR 108 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Number of paragraphs:	145
Date of last submission/s:	5 February 2021
Date of hearing:	27 October 2020; and 21 to 23 December 2020
Place:	Melbourne
Counsel for the Applicant:	Mr Dickson Q.C.
Solicitor for the Applicant:	Lander and Rogers
Counsel for the Respondent:	Mr Puckey S.C.
Solicitor for the Respondent:	Taussig Cherrie Fildes

ORDERS

MLC 5402 of 2018

BETWEEN:

MS CHAPPELL

Applicant

AND:

MR CHAPPELL

Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

All extant applications be adjourned for mention before Justice Hartnett on 29 June 2021 at 10.00am.

AND THE COURT NOTES THAT:

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

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

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

REASONS FOR JUDGMENT

HARTNETT J:

PRELIMINARY

The proceeding was first initiated by the Applicant wife (“the wife”) on the 17 May 2018. Thereafter it involved competing applications by the parties for final property orders. The trial commenced on 27 October 2020 and continued on 21 to 23 December 2020 inclusive. On 23 December 2020, I made the following orders, relevantly, in the then application in a case, filed by the wife :
…
3.Within 14 days, the husband and wife cause to be paid the sum of $750,000 to the wife by way of part-property settlement from the B Pty Ltd accounts.
4.Within 48 hours of provision of the relevant invoice, the husband pay or cause to be paid the sum of $5,684.86 to C Insurance, in payment of the outstanding insurance premium associated with the property situate at and known as D Street, Suburb E (“D Street”).
5.On or before 9 March 2021, each party pay or cause to be paid the sum of $5,684.86 to C Insurance, in payment of the insurance premium associated with D Street, for the period 9 March 2021 to 9 March 2022.
6.The husband and the wife each pay or cause to be paid one half of the invoices/s issued by F Constructions, consistent with the quote attached to the wife’s affidavit, up to the sum of $52,000, as and when they fall due, in payment of repairs conducted in relation to D Street to prepare the property for sale.
…
Written closing submissions were filed by both parties on 5 February 2021.[1] In those submissions, both Counsel proposed that further orders may need to be drafted by them following judgment on the issues in dispute in order to implement my decision. This is acceptable to me. It will give the parties the greatest opportunity to accommodate their needs consequent upon my decision as to those matters in dispute, and take into account any resultant agreements they may reach as to the totality of the property orders that will need to be made.
[1] Pursuant to orders made by Hartnett J on 23 December 2020.
Prior to the commencement of the trial, the parties had entered into consent orders which dealt with each of their applications for superannuation splitting orders. Those orders were made on 27 March 2020. Those orders provided for an equal splitting of the parties superannuation benefits, as sought by each of them. The result in monetary terms is such that each of the parties have superannuation funds available to them of approximately $3,350,000 once they effect implementation of those orders.
The position of the Respondent husband (“the husband”) at trial was that orders should be made to, in effect, provide for a property adjustment between the parties that was an equal one by reference to the pool of assets as quantified by the husband. The wife’s position at trial was that I should make orders adjusting the property interests of the parties by reference to the pool of assets as quantified by her as to 55% to the wife and 45% to the husband. Each of the parties sought for themselves possession and ownership of the property situate at G Street H Town (“the G Street property”) and of the sculpture collection, most of this collection being situate on that property. Both parties have a very strong attachment to this property and neither were able to compromise its ownership. Likewise, the collection of sculptures as owned by them was unable to be compromised until the running of the trial when their positions reluctantly moved somewhat. Their respective disappointment at sharing the collection of some 130 sculptures,[2] acquired by them in a joint and very enjoyable endeavour, lessened, or maybe the notion of sharing became not so unpalatable, and the preservation of the integrity of the collection (ownership by one only) not so necessary. In any event, it was an important shift, one they may both be grateful for in the years to come.
[2] Applicant wife’s case outline document filed 26 October 2020 at page 5; and transcript day 2, page 107 at lines 6- 9.
By contrast with the parties’ attitude to the G Street property, the parties both agreed that the property situate at D Street Suburb E (“the Suburb E property”) should be sold by them, and neither sought to retain this property which had been the former matrimonial home. A sale in respect of same will not incur capital gains tax.
The parties’ third significant property, situate at J Street (“the J Street property”) is a farming property with no residence on it, unlike the Suburb E and G Street properties.
The husband sought to sell this property regardless of the eventual occupant of the G Street property. The wife sought to consider her position. If she did not succeed in retaining ownership of the G Street property, then she sought some time to decide whether she would take the J Street property instead. It remained however, her very clear primary position, to retain the G Street property. If J Street is to be sold, then the stock, plant and equipment on that property must also be sold save in the event of any other agreement between the parties as to its disposal and/or transfer. The approximate capital gains tax payable on the sale of J Street will be $566,395.

MATERIAL RELIED UPON

The wife relied upon the following material:[3]
[3] Applicant wife’s case outline document filed 22 October 2020.
(a)further amended response to initiating application of Ms Chappell affirmed and filed on 17 February 2020;
(b)affidavit of Ms Chappell affirmed and filed on 18 February 2020;
(c)affidavit of Ms Chappell signed and filed on 9 October 2020 (refiled on 13 October 2020);
(d)exhibits of affidavit of Ms Chappell filed on 9 October 2020 (refiled on 13 October 2020);
(e)affidavit of Mr K filed on 9 October 2020;
(f)affidavit of Mr L filed on 9 October 2020;
(g)financial statement of Ms Chappell signed and filed on 9 October 2020;
(h)N Group Valuation Report of D Street, Suburb E;
(i)N Group Valuation Report of J Street, H Town dated 16 September 2020;
(j)N Group Valuation Report of G Street, H Town dated 16 September 2020;
(k)O Group Valuation Report by Mr P of G Street, H Town;
(l)Q Group Valuation Report of R Street, S Town, Tasmania dated 13 October 2020; and
(m)V Auctions Valuation Report dated 20 September 2020.
The husband relied upon the following material:[4]
(a)further amended response to an initiating application filed on 2 March 2020;
(b)affidavits of Mr Chappell filed on 2 March 2020; 30 September 2020; and 19 October 2020;
(c)financial statement of Mr Chappell filed on 2 March 2020; and
(d)affidavit of Mr U filed on 19 October 2020.
[4] Respondent husband’s case outline filed 26 October 2020.
Further documents relied upon by the parties were tendered in evidence over the course of the trial.

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER

Section 79(1) of the Family Law Act 1975 (“the Act”) provides that the Court may make such orders as it considers appropriate altering the interests of the parties to the marriage in the property of the parties. Section 79(2) of the Act provides as follows:-
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
The High Court of Australia (the “High Court”) in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act for married parties, and s 90SM of the Act for de facto couples. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[5] must not be merged with, or supplanted by the inquiries under ss. 79(4)/90SM(4) of the Act.[6] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[7] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[8] In particular, the High Court said at paragraphs [37] to [42] as follows:-
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between Applicant and First Respondent as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”.
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between Applicant and First Respondent about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
41.Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to "the need to preserve and protect the institution of marriage" identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[5] Stanford v Stanford (2012) 247 CLR 108 [37].
[6] Ibid [51].
[7] Ibid [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[8] Ibid [41].
Both parties sought that I alter the existing legal and/or equitable interests in property of each of them, and both argued that it would be just and equitable to do so.

Background

The wife was born in 1959 in the United States of America (“the USA”) and is 61 years of age. She relocated to live permanently in Australia in 1994 and became an Australian Citizen in or around 1996. She owns and controls T Global Pty Ltd and W Pty Ltd. She has been on many Boards for different types of organisations. She has consulted with X Corporation and the Y Property Group. She was previously the Chairman of the Z Foundation and the AA Festival. The wife has now ceased her Board involvement and remunerative consulting work. She is not earning income from these sources and is unlikely to in the future given her age and the industry in which she worked. The wife remains living in the former matrimonial home being the Suburb E property. She anticipates the fairly proximate sale of that property. She has some health issues. She had surgery for cancer in 2018. In 2018 and 2019 the wife had an autoimmune response to her right leg that is currently in remission.
The husband was born in BB Town in 1968 and is 52 years of age. He is a Type 1 diabetic and requires daily injections of insulin. His health issues do not preclude him from engaging in demanding employment. He is a finance professional. He is currently the Chief Executive Officer at CC Group, a role which he commenced in July 2019. He was formerly a founding partner and Executive Chairman of the DD Firm.

In the financial year ending 30 June 2017, being around the time of the parties’ separation, the husband’s received income of $1,520,632 gross.
In the financial year ending 30 June 2020, the husband received a base salary of $1,260,000 gross together with a short- term incentive payment of $780,000 gross, and an opportunity to participate in a share options/rights plan for employees, being an equivalent of $630,000. At trial, the husband had not exercised the rights to acquire the shares.
The husband resides in both the family property at G Street and in an apartment in the CBD of Melbourne.
The parties commenced cohabitation in or around 1994 or 1995 in Melbourne and married in 1997. The parties have two children of their relationship, Ms EE born in 1997, who is 23 years of age and Mr FF born in 2000, who is 20 years of age. The parties separated in or about June/July 2017. Their period of cohabitation was thus approximately 23 years. The wife has not re-partnered since separation. The husband has, although he does not live with his partner.
Ms EE is enrolled in a Masters’ Degree at a university. The husband pays for Ms EE’s living expenses, university books and provides her with an allowance of $100 per week. Ms EE lives in her father’s apartment in Melbourne. The wife contributes also to the support of Ms EE.
Mr FF is enrolled in a Bachelor Degree at another university. He lives with the wife in Suburb E and spends time with the husband on some weekends at the G Street property. He has also lived in a university college. The husband paid for his college fees in 2019 and provides him with an allowance of $100 per week. The wife contributes also to the support of Mr FF, in particular because he has lived with her, save for the time he has spent in college, since the separation of the parties.

THE EVIDENCE

Both the wife and the husband were cross-examined as to their affidavit evidence and other relevant matters. The other witnesses relied upon by the parties were not required for cross-examination. That is, their evidence was unchallenged.
Senior Counsel for the husband submitted that the husband’s evidence should be preferred where the parties disagreed, saying the wife was a “highly evasive” witness. Whilst the wife could have answered questions more directly at times, I do not share Senior Counsel for the husband’s view that she was “highly evasive”.
I found the wife a truthful witness, equally, I found the husband to be. Their very different personalities were clearly evident in the manner in which they gave their evidence, but that does not impact upon my assessment of each of them as credible witnesses.

Evidence of Mr U

Mr U is a Certified Practising Accountant and has been the accountant of the husband and the wife, and their group of entities, for in excess of 15 years. His evidence is unchallenged. Each year, Mr U has provided the accounts for the T Group, being the parties various corporate entities and trusts, to the parties. He has been available for any discussions that either of the parties or both wished to have with him. He has answered questions from each of the parties in relation to the accounts for the T Group, and explained the corporate structure to the wife both early on in the parties’ relationship, and thereafter. That has included the restructuring of the T Group by the husband to equalise the parties’ interest in the T Group in 2013. His evidence in particular in that regard was that the wife told him that “she agreed with the changes and understood what was being implemented.”[9]
[9] Mr U’s affidavit sworn 9 October 2020 at paragraph 8.2
Following separation and at the husband’s request, Mr U has supplied the wife with any information and documents as requested by her in relation to the corporate entities and trusts in which they have an interest. He has also answered, in a timely way, all of the wife’s many questions and subsequently responded to all correspondence emanating from the wife’s solicitors. He has produced all documents as requested by the wife. It was Mr U’s evidence that he has had difficulty from time to time, in achieving the wife’s necessary co-operation for usual tasks required to be done by him such as the lodgement of the FY17 tax return for the SMSF T Superannuation Fund. Despite the prospect of ATO penalties and an audit in respect of her delay, the wife did not provide the signed accounts to Mr U for lodgement with the ATO until the 4 November 2019. The wife agrees that she delayed in the provision of signed documents as requested in that instance but her reason for doing so was a legitimate one. She was not satisfied as to the accuracy of that which she was requested to sign. Ultimately, she signed under protest.
Each of the parties has instructed Mr U to implement the superannuation splitting orders made on 27 March 2020. At trial, that implementation remained outstanding. The parties should forthwith do all acts and things necessary to comply with the orders made the 27 March 2020.
Mr U’s evidence in respect of T Global Pty Ltd was, relevantly:
…7.1 [The wife] established T Global Pty Ltd in 2010 to operate her consulting business.
7.2 On [the wife’s] instructions, I have prepared the accounts for [T Global Pty Ltd] since its inception. I liaise directly with [the wife] and her staff members in relation to the preparation of the accounts, lodgement of returns and payment of tax. I correspond with [the wife] on emails and by phone to answer questions to provide advice to her in relation to [T Global Pty Ltd], and in relation to the broader [T Group]. This has continued following [the husband] and [the wife’s] separation. …
Mr U has not been instructed by the wife to prepare and lodge the taxation returns for FY18, FY19 or FY20 of T Global Pty Ltd.
Whilst the wife determined not to have cross-examined her own accountant, that approach did not signal her satisfaction with him. She has viewed him since separation, in the husband’s corner, and considers that he has “withheld many things over a long period of time”[10] from her. Certainly the wife has felt that she did not understand the totality of the husband’s organisation and management of, their financial affairs. She did not take the opportunity to cross-examine Mr U however, and I accept his evidence. There is fundamentally a lack of trust and communication between the parties.

ISSUES FOR DETERMINATION

[10] Transcript day 1, page 39 at line 35.

G Street H Town

It is the wife’s primary position that the parties should do all acts and things necessary to transfer, to her, sole ownership of the G Street property free of encumbrance. Her retention of that property, Queen’s Counsel for the wife submitted in closing submissions, should be at a value as determined by the expert evidence. That is, $4 million. If I determine that she should take the property at a value of $6 million, that alternative position is acceptable to her. During the trial, Queen’s Counsel for the wife indicated, that the wife was prepared to have the property transferred to her for payment by her of a sum of $6 million. The husband did not respond to the wife’s “offer”.
The fact that the wife indicated a preparedness to take the property at a price of $6 million, did not alter the value of the property as determined by me on the basis of the expert valuation evidence, with which the parties agreed. The state of the valuation evidence was not uncertain, and nor was the parties clear acceptance of that value at $4 million.
The wife’s actions in the offering of a higher sum at which she was willing to acquire the property, whilst acknowledging her acceptance of the single expert valuation, was merely the emphasising of the great personal and sentimental value she places upon the property. It was also obviously an offer to the husband that he could elect to take up or not. He did not. He was under no obligation to do so, nor to make a counter offer.
The husband’s Senior Counsel submitted in closing submissions that if the G Street property was to become property of the wife it should be acquired by her at the $6 million figure she indicated she would be prepared to pay. This figure was not its value as determined by the expert evidence. The actions of the wife do not alter or challenge the sound valuation evidence which is accepted by me. In my view, it would not be an alteration of interests in the property of the parties that is just and equitable to ascribe to the property a valuation emotionally driven by a party, rather than a valuation that would be fair and anticipated in the independent market place. The wife will not run the property as a business from which she will derive a significant income or indeed any income. There is no additional monetary benefit to be derived, personal to her which may be a reason to further consider the valuation evidence. Rather, the property is to be her home. That is emphatically her evidence, which I accept. In those circumstances, it cannot be just and equitable to her to pay a figure beyond the valuation evidence.
It is also the husband’s primary position that he retain the G Street property, a property, on the evidence of the husband, and as was submitted by Senior Counsel on his behalf, the husband considers his ‘spiritual’ home. His emotional attachment to it is equally as strong as that of the wife to the property.
The question for me, given each party is so highly desirous of retaining the G Street property for themselves, is what approach should be taken to determine this dispute. Should I order the property be placed on the open market for sale with each party at liberty to bid, or should I determine that on an examination of the evidence, and in all of the circumstances of the case, it is just and equitable for one party’s position to be preferred over the other.
A private auction as between the parties was briefly canvassed in the proceeding. I am not inclined to adopt that course. In my view, that opportunity has been available to the parties until now. They have not elected to adopt such course save the wife making a ‘bid’ at trial left unanswered by the husband. An entitlement he had. A public auction states the market price amongst a larger number of prospective purchasers, or at least the opportunity is had for that, and each of the parties can decide, relative to all other prospective purchasers, what price they are prepared to pay. The value of the asset can be maximised in this way, as submitted by Queen’s Counsel for the wife.
However, a public auction may see neither party live in the home into which they have put so much energy and passion. To not determine this dispute leaves it to continue in some form. There is no “clean break” consistent with s 81 of the Act between the parties, and both shall continue to strive for that which they want, namely, exclusive use and ownership of the property. The parties will not come to a public auction in the same position. The husband’s income and earning capacity will far exceed the wife’s. The wife may need to spend capital beyond that which may be prudent when considering her financial needs into the future. In my view, there is sufficient evidence before me to determine this matter in favour of a party. I have determined that the G Street property should be transferred to the wife having considered the aforementioned matters and in particular the following matters:
(a)I accept the wife’s evidence that the G Street property will immediately become her home. In particular, now that she is free of her parental responsibilities to the extent that she no longer needs to live in the Suburb E property. Unlike the husband, she does not have ongoing work in the city which requires the rental and/or purchase of a Central Business District (“CBD”) dwelling. Some part of the husband’s ongoing employment requires frequent travel. As he said in evidence, “I go to Sydney a lot”.[11] The husband gave further evidence as to the necessity for him to have a place in which to reside in the city. He said:-“…that’s what I have to do to actually undertake my work”.[12] The husband has now occupied premises in the city since approximately 4 months after the separation. His recent rental agreement was entered into by him in July 2020. He pays approximately $114,396 per year in rental payments, approximately $2,158 per week. Whilst the husband provides accommodation for the parties’ adult daughter Ms EE, it is he who needs the ability to be housed in the CBD in respect of his onerous work obligations. His use of the G Street property will continue into the future to be what it has been in the past. That is, mostly a place where he resides on weekends. In respect of that occupation, the husband pays a yearly rental to one of the parties’ entities in the sum of $2,000 a week. The expenses of the gardener; rates; and outgoings of the property have been paid for by the parties corporate entity which owns the G Street property. The wife had thus contributed to the husband’s occupation of the property.
(b)(i) The husband’s use and occupation of the G Street property since separation is not a significant matter when considering who should occupy the property in the years ahead. The husband’s occupation was achieved by his forceful exclusion of the wife from her use of it following separation. There was, in his mind, no concept of sharing the use of a property owned by both of them. Sharing in the sense that they alternated their time there. Using the property as a permanent, full time residence was something neither party could, nor did do, in the years immediately following separation. The wife more recently could have taken up full time residence in the property. The husband has objected to that course.
(ii) The husband’s evidence was that the former matrimonial home in Suburb E was a home he had “no affection”[13] for. His evidence was further, “I have had no affinity with that place and I’ve never thought of it as home.”[14] Upon separation, the husband left the former matrimonial home, leaving the wife and parties’ son Mr FF to reside there. This more easily facilitated the wife’s care of Mr FF, and the attendance of Mr FF at secondary school. The wife had no ability to simply move her residence to the G Street property at that time. Nor did the husband, save for a very short term occupation, given his work commitments. He could continue to use it on weekends only, as could the wife. However, the husband acted to ensure the wife was locked out of her use of this joint property at those times that she may have been able to use it, and enjoy it, with the children, or alone, as he has. The husband changed the locks and intimidated the wife by threatening to obtain an Intervention Order (“IVO”) against her if she sought to attend upon the property, let alone occupy it for any limited periods of time. At that very early point, the husband sought to claim the property for himself. He implemented his unilateral decision, and as a consequence, the wife has been unable to enjoy the use of a property of equally great sentimental value to her, as acknowledged by the husband. Whilst the parties disputed how much time each spent there in the years leading up to separation, both acknowledged that each has been extensively involved in all aspects of the property at varying times since their acquisition of the property; that each has a strong emotional attachment to the property; and that each feels very strongly about retention of it by them.
(c)The husband also sought to exclude the wife from areas outside the parties’ property. The husband had the wife removed from playing rights at the II Golf Club. This was unnecessary in a financial sense. He could have offered her the opportunity to pay her own subscription and remain on the membership share without cost to him. In his evidence at trial, the husband said as to his actions in respect of the golf club membership, “I definitely didn’t want her being the nominated person on the membership…”[15] The husband’s evidence was further that he did not want to run into the wife in the clubhouse; that the golf club was a place where he spent a lot of leisure time; and that he did not think he and the wife being in the same place was “a sensible thing”[16] and was “…a very impractical suggestion, given our martial circumstances.”[17]
(d)The husband’s actions resulted in the exclusion of the wife from what he considered his domain. His actions in removing the wife from the G Street property and the II Golf Club do not support the husband’s claim to retention of the property. They were simply controlling behaviours in the face of which the wife chose to avoid a confrontation and further conflict. Likewise, the fact that the husband will not countenance retention by him of the J Street property whilst the wife will, is not determinative in the husband’s favour. The wife maintains her desire to live in the area, on a property with connection to the family. If finances permit, she contemplates perhaps building a home on the J Street property. The husband does not wish to build a home and live on the J Street property in any circumstances. He may build or buy elsewhere, being “most likely in the country”[18], but impliedly not necessarily H Town. His attachment to the area and its family connection is not in the manner of the wife’s attachment.
(e)The husband has close friendships with their neighbours and friends in H Town, as does the wife. Both parties concede this of the other. The wife has gone to some lengths to retain her connection to the area, setting up a caravan on the J Street property to pursue her friendships in the area, and to continue to enjoy the H Town surrounds.
(f)(i) Both parties were involved in the design of, and renovations to, G Street. The husband had input to the overall design and materials. The wife selected the interior decorations with the designer engaged by the parties and made decisions at the operating level including liaising with the contractors. The husband managed the finances for the renovation.
(ii) Mr K a self-employed, Rural Contractor was engaged by the parties to carry out in the main, structural outdoor works, at the G Street property. His unchallenged affidavit evidence was that the wife provided the “vision, design and implementation support”[19] and the husband provided the “administration of payments”[20] to renovate the parties holiday home at G Street over many years from in or around 2005 (“the renovation”). Mr K’s further evidence was that the wife discussed with him how the spaces in and around the house could be best utilised for the family, and the life she envisioned for her family there. For example, when they discussed the design for the outdoor space, the wife tended to visualise how the space would operate for the family, individual family members, private gatherings, Easter Egg Hunts and family Christmases and social gatherings such as birthdays, where furniture would be positioned to best utilise each space, for the enjoyment of her family and guests. Mr K observed that the wife particularly wanted to use natural and recycled materials through the house and outdoor areas, as I find, did the husband. Mr K and the wife had in-depth discussions about the "environment" the wife wished to create for the family including the curation of the look and feel she was envisioning. The origins of where the materials would be sourced from was important to maintain the integrity of the commitment the wife had to local communities, reuse and nature. Mr K sourced recycled timber, metal and stone to her specifications and with the wife’s assistance selecting the right material for each area and design, including reused wood, wire/metal, slate and stone from AB Quarries. The wife spent many years engaged in this project. She had the time to do so, which the husband did not. She was passionate about the project and the place which she saw as one of gathering for family and friends.
(g)The horses, three in number, now currently on the G Street property, and being one small part of the husband’s argument to retain the G Street property, can be relocated elsewhere in the H Town area, including being transferred for a time to J Street, and/or otherwise to any suitable location and in any area. The husband should decide where the horses shall be accommodated next, as they should remain in his care. He has cared for them for the years of his occupation of the property since separation. Their existence does not loom large in my decision as to whom should retain the property.
(h)The husband will not live at the G Street property in the next few years. The wife will. The husband has a significant income and earning capacity which will better allow him, relative to the wife, to purchase another property. He is younger than the wife, and in better health. He has re-partnered albeit, at trial, is not living with his partner. He is able, more readily than the wife, to take up residence in another property to which he will become emotionally attached. The G Street property was the parties’ joint project. It is preferable that one of the parties remain in occupation rather than a stranger, third party. The wife is at a time in her life where she can enjoy living at the family property that is the G Street property, and have the company of her friends and family in the area and home she loves. To further exclude her from living at the G Street property so as to enable the husband to periodically stay there when he is able, is not just and equitable. There is no need to delay this move of the wife. She has waited patiently for some time.
[11] Transcript day 2, page 152 at lines 17-18.
[12] Transcript day 2, page 152 at line 21.
[13] Transcript day 2, page 153 at line 41.
[14] Transcript day 2, page 153 at lines 44-45.
[15] Transcript day 2, page 157 at lines 31-32.
[16] Transcript day 2, page 157 at line 24.
[17] Transcript day 2, page 156 at lines 21-22.
[18] Transcript day 2, page 155 at line 21.
[19] Mr K’s affidavit sworn 9 October 2020 at paragraph 5.
[20] Ibid.

An order shall be made for the wife to have sole use and occupation of the G Street property from the 21 July 2021. That order shall be expressed to cover the period between that date and the transfer of the title of the property to the wife. Such transfer should also occur promptly and be if possible within 60 days of the order being made.

Sculpture Collection

There are sculptures at G Street, in the husband’s office, and at the Suburb E property which have a monetary value not known to the parties and about which they are not concerned, the sculptures having more sentimental and other value to them. The sculptures are important works of art. Both parties gave evidence that they were initially collected for installation at the G Street property, and that many are of very significant size and weight, requiring earth moving equipment to remove. The husband sought to retain them. The wife also sought retention of the collection in its entirety. Whilst both agreed that the works would be better housed at the G Street property, where various installation structures including customised pedestals have been built, they did not agree to the other having possession and ownership of the totality of the works. The sculpture collections are owned by the T Investments Unit Trust.
This collection now numbers some 130 pieces. It was the wife’s evidence that the collection should remain intact, as a whole. In that way, the wife’s Queen’s Counsel argued, there would be maintained by the wife “the integrity of the collection …Dividing the collection will reduce its overall significance and value.”[21] It was also the initial position of the husband that the collection remain as a whole.
[21] Transcript day 2, page 103 ay lines 39-40.
Whilst both parties litigated as to ownership and possession of this collection, ultimately there appeared to be some acceptance of a division of the collection (regardless of location) as between them. The husband stated as much in the giving of his evidence when cross-examined, the exchange between Queen’s Counsel for the wife and the husband being as follows :
Dickson Q.C.: Tell me this: if you are unsuccessful in seeking to retain [G Street], you know that [the wife] wants to have half of the sculptures, come what may, regardless of who wins. Would you seek to remove half the sculptures from [G Street]?‑‑‑
Husband: I always assumed that the sculptures would be shared.
Dickson Q.C.: Okay. Where are you going to put them?‑‑‑
Husband: That’s for me to decide. If I don’t have [G Street], I won’t have a – so those sculptures were in storage for about five to seven years before we bought [G Street] and installed them. If I have to put mine back in storage, I can do that for a period of time until I have somewhere to place them, just as [the wife] could do the same thing.[22]
[22] Transcript day 2, page 168 at lines 26-36.
Queen’s Counsel for the wife submitted in closing that both parties appeared to have accepted the concept of a division of the sculptures. This process will be difficult and include cataloguing, selection, removal, and transport. The process may need to be overseen by a third party if that is what the parties wish. Otherwise they must undertake this task themselves, promptly. The selection process should be on a pick by pick (alternate) basis, with the husband to have the first pick such that the collection is equally divided between the parties. If there is an odd number of sculptures in total, then the husband shall have the extra one.

Golf Club Shares

On 28 May 2020, and by consent, orders were made which included the obtaining of a joint valuation at the equal shared expense of the parties of “…3(g) the husband’s memberships in the GG Golf Club, HH Golf Club, II Golf Club and the JJ Golf Club.”[23]
[23] Orders of Hartnett J made 28 May 2020.
The manner in which the parties were to engage with each other to obtain the above valuation was as provided for in order 4 of the orders made 28 May 2020. The parties did not engage in that process. Instead, the husband obtained letters from each golf club in the place of formal valuations, the contents of which were put to him and adopted by him.
The evidence of the husband was that he is a member of four golf clubs.
The husband’s membership of the II Golf Club in H Town is a corporate membership. The corporate share, the husband said “…is valued at about $30,000, of which I’m a third of it.”[24]
[24] Transcript day 2, page 158 at lines 30-31.
The husband’s membership of HH Golf Club in New Zealand, was purchased by him “…from memory, for 180,000 New Zealand dollars, or thereabouts. Which is not the value of it now.”[25]
[25] Transcript day 2, page 158 at lines 30-31.
The husband’s membership of HH Golf Club was purchased by him before the parties’ separation. He thought, “…in the previous six or nine months…”[26]
[26] Transcript day 2, page 158 at lines 38-39.
The husband’s evidence as to the valuation of his HH Golf Club shareholding of 10,000 shares was given in the following exchange with Queen’s Counsel for the wife:
Dickson Q.C.…And you’re aware, aren’t you, that an order was made in these proceedings for valuations to be made of your various golf memberships?
Husband: Yes.
Dickson Q.C.:…And subsequent to that order being made, you procured from the HH Golf Club – the board member there, Mr KK – the worth?
Husband: He is head of sales.
Dickson Q.C.:He’s head of sales?
Husband: Yes.
Dickson Q.C.:…All right. So did you ring him, or you emailed him, or what did you do?
Husband: I would have done both. I would have emailed him and said I require a valuation for the purposes of a Family Court hearing, can you please inform me what the…
Dickson Q.C.:And what he told you was that the current market value of 10,000 shares, which is what you’ve got – that’s right, isn’t it?
Husband: I don’t actually know what the construct is, but that’s how he has marketed it, so it must be right. Yes – that’s how he has represented it.
Dickson Q.C.: The current market value is 350,000 New Zealand dollars?
Husband: It’s 280,000. A bit below it.
Dickson Q.C.:Just wait for it?
Husband: Yes.
Dickson Q.C.: The current market value is 350,000 New Zealand – “there have been many sales at this price, and recent COVID-related events do not seem to have affected demand ..... sold share being transferred to a related party” – same as unsold shares, so it’s just – you’re transferring to someone else, it’s as good as selling them on market, and for a resale share, the current market value less the transfer fee, less an allowance for time to sell the share – he goes on to say, “if the current shareholder and member wanted to sell his or her shares, and resign their membership”, the fair value of the shares as being marginally less than 280,000 New Zealand dollars?
Husband: That’s what it says, yes.
Dickson Q.C.: Your golf memberships didn’t feature anywhere in any of the financial statements to date, in any of these proceedings?   So…
Husband: – no. It was an omission in my financial statement which my lawyer subsequently drew to the attention of – I believe of the lawyers who were in place at the time.
Dickson Q.C.: Sorry?   So it was an omission in my initial financial statement.
Husband: It was an omission in your February financial statement, wasn’t it?   Well, in the financial statement.
Dickson Q.C.: You saw one in July 2018, that didn’t have it, nor did your February 2020 one, did it?
Husband: I – I don’t recall. If it’s not in there, it’s not in there.
Dickson Q.C.: And, again, [the wife] was making a lot of noise about this, wasn’t she? She said these things need to be valued and your position was: there’s nothing in it, there is no value there?   So
Husband: – no – no, that wasn’t my position at all.
Dickson Q.C.: Wasn’t it?
Husband: No. I’ve never suggested there was no value in HH Golf Club. I’ve suggested there’s no value in JJ Golf Club because there’s no transferable right, but never in HH Golf Club, no. …
The husband’s evidence as to his membership of the JJ golf club was that it has no value, as it has attached to it, no transferable right.
The husband’s evidence as to his membership of the GG golf club was that he has no share in the golf club, and has no equitable interest.
The total cost to the husband for his golf memberships is approximately $30,000 a year.
I accept the evidence provided by the husband as to the value of his golf memberships. In particular, I find the value of his HH Golf Club share is a current market value of NZD $350,000 or NZD $280,000 on a re-sale after selling costs and other costs. The husband has no current intention of selling his shares and resigning his membership and accordingly, as submitted in closing submissions by Queen’s Counsel for the wife, the current value of his shares should be included at the higher figure of NZD $350,000 or AUD $327,750.
The husband proposed the non-inclusion of his golf club shared in the asset pool. As is clear from the above, these shares are an asset retained by the husband. The value of the shares must be included in the asset pool of the parties.

LL Inc. private company shareholding

The submission of the husband’s Senior Counsel that the value of the husband’s golf membership shares, “…is likely offset by the undisclosed asset of the wife’s USA LL Inc. shareholding…” is not accepted by me. The valuation of the husband’s golf membership shares was in issue between the parties and such shares have a real value, as accepted by the husband. The husband has at all relevant times been aware of the LL Inc. private company shareholding of the wife. Whilst it is correct, as submitted by Senior Counsel for the husband, that the wife did not refer to this shareholding in her financial statements, the existence of the shareholding, as gifted to her in January 2011 by her late father, was never hidden from the husband. In fact it was clearly disclosed, and known to the husband over a long period of time.
The husband did not seek to value the wife’s shareholding. Neither party determined its value was of importance. No value can be placed in the asset pool in respect of this shareholding. Further, neither party sought any alteration of that interest, or some form of set-off save the suggestion of it by Senior Counsel for the husband in closing submissions. The matter was not run in that way. Rather, I am satisfied that the husband knew and accepted that such shareholding was a gift to the wife from her father, upon which he placed little value and in relation to which he sought no alteration of interests.

The husband’s legal costs

The evidence of the husband at trial was that he had paid approximately $328,000 in legal fees during the course of the proceeding. In closing submissions, his Senior Counsel referred to a figure of $334,553.61. His evidence was further “I’ve paid that out of post-separation earnings.”[27] Before the 30 June 2019, the husband had received, in his personal accounts, and also in the parties controlled entity bank accounts being Chappell Partnership Finance Trust, and T Australia Pty Ltd, monies from DD Firm being monies earned by him prior to separation, but received by him post the separation of the parties. The monies totalled $1.265 million. The husband was liable to pay tax on that receipt as claimed by him and did so. He had remaining, more than an amount of approximately $632,500. Clearly these monies were not “post separation earnings.”
[27] Transcript day 3, page 184 at line 9.
The personal income tax returns of the husband for the financial years ended 30 June 2017; 2018; 2019; and 2020 indicated a personal income of $4,486,696 in total. That was a figure not in dispute. The tax paid by the husband on that sum was a total sum of $2,894,653, again not in dispute. The net available to the husband was $1,592,043. The payment of the husband’s tax derived from funds in his personal accounts and pooled funds in the T Australia Pty Ltd account/s as thereafter transferred by him, on occasion, into his personal accounts. When asked by his Senior Counsel, in re-examination: “So are any of the funds paid into the entities, then withdrawn by you for personal expenses or legal fees?”[28] The husband’s answer was “No.”[29]
[28] Transcript day 3, page 196 at lines 40-41.
[29] Transcript day 3, page 196 at line 41.
I accept the evidence of the husband as to this limited withdrawal. The payment of his legal fees thus came out of his personal account monies. Some part of the DD Firm monies however appeared in his personal accounts with another part of those monies appearing in the entities accounts which made payments of taxation. There was a considerable net sum available to the husband in his personal accounts from DD Firm being not available to the wife and being pre- separation income.
The wife sought that the amount of $325,000 of the husband’s paid legal costs be added back into the asset pool available for distribution between the parties. The wife’s Queen’s Counsel submitted in closing submissions that the husband could not claim that his legal fees were paid out of income he earned and received after separation, as opposed to being from monies he already had (or was due but had not yet) received at separation. I accept that argument. The husband cannot reliably make this claim. He had ample funds from the DD Firm source with which to pay in full his legal costs and have significant monies otherwise at his disposal. These were monies to which the wife had an entitlement.
The wife’s Queen’s Counsel further submitted that the husband paid no spousal maintenance in the years following separation and ongoing and that had he not paid his legal fees, the divisible assets between the parties would have been larger. I accept that submission. The wife has paid her legal fees from post separation income received by her, and from borrowed monies obtained by her to meet her ongoing legal fees liabilities in relation to which she accepts sole liability. That debt from the Westpac bank, and other private borrowings subsequently obtained by her in the sum of approximately $180,000 to pay legal fees remain outstanding and such debts will be met by the wife solely.
The legal costs as paid by the husband in the sum of $325,000 should be added-back into the asset pool.

The wife’s $2.5 million (in total) loans

Following the parties separation and in March 2018, the wife borrowed a sum of money from Westpac, Rocket Loan #...60. That loan advance was in the sum of $1 million. The wife did not consult with the husband as to the borrowing nor inform him of it until September 2018.
In August 2018, the wife borrowed a further sum of money from Westpac, Rocket Loan #...59, being a further loan advance of $1.5 million. Again, the wife did not consult with the husband as to this borrowing, nor inform him of it until September 2018. It was the wife’s evidence that she required such advances, totalling $2.5 million to meet her necessary and reasonable living costs and other reasonably incurred expenses of herself and of the parties and their children. The wife seeks the inclusion of such debt in the net asset pool of the parties save she concedes that I should ignore, for the purpose of assessing the divisible pool, that component of the Westpac debt that relates to legal and accounting fees paid by her in the total sum of $422,732. The husband seeks to exclude the entire debt. It is common ground that the debt (with interest accruing) exists, as does other debt advanced to the wife to further assist in the payment of her legal fees. The wife acknowledges that she shall be solely responsible for the payment of all her legal fees.
Essentially, Senior Counsel for the husband argued and submitted in closing submissions that the wife had income with which to meet her reasonable living and other expenses such that the Westpac borrowings obtained by her were not necessary, and should not be included in the asset pool. I disagree with this assessment.
During the period following separation, as noted earlier, the husband paid the wife no spousal maintenance. He denied the wife access to all of the parties’ joint bank accounts. This propelled the wife into the obtaining of borrowings, additional to her income.
In the financial year ended 30 June 2017, the wife had received Board fees, together with X Corporation consulting fees. She had also control of the VV Pty Ltd licence fees monies as described hereafter. In the following financial year, ending 30 June 2018, being the commencement of the parties’ separation (and until November 2020), the wife was in receipt of very modest income from the MM Foundation in the sum of approximately $47,895 gross;[30] salary income from T Global Pty Ltd of $120,000 gross; and an interest payment made by Westpac in the sum of $84 per week ($4,368 a year). A total of $172,263 gross income received by her in that year. In the following financial year, as appears in the 2018-2019 taxation return of the wife, the wife continued to receive the MM Foundation income together with income from a Government Department in the total amount of $326.[31] She also received dividend income from NN Limited of $187 a week (approximately $9,724 a year). Additionally, the wife received in October 2018, a payment from X Corporation for consulting work undertaken by her post separation, in the sum of $440,000 gross. This was the only consulting income received by the wife post-separation. No other income is due to her in respect of any contract entered into by her, and she has no expectation of ongoing consulting work. The wife’s earlier salary income from T Global Pty Ltd continued until 30 June 2019. A total of $617,945 gross income was received by her in that year. In the financial year ending 30 June 2020, the wife’s income was $62,313 gross derived from sources as set out in paragraph 130 of these reasons. That level of personal income was continuing at trial. The wife’s personal income in the 3 years following separation was approximately $852,521 gross. In the 3 years following separation the husband’s personal income was in the amount of $2,966,064 gross. The wife received $136,000 approximately in taxation refunds.
[30] Applicant wife’s financial statement dated 9 October 2020 at page 4.
[31] Ibid.
Additionally, the wife had (as has) control of the VV Pty Ltd licence fee monies in the sum of $28,000 paid monthly from separation and currently ongoing. The payment of $28,000 gross a month is made directly into Westpac account number ending xx3364 which is an account in the name of T Global Pty Ltd. The wife has control of this income because of her control as sole director of T Global Pty Ltd, this being the entity that is the ultimate recipient of the VV Pty Ltd licence fees and the entity that pays the taxation liabilities in respect of the receipt of the licence fees. The husband’s evidence was that this is an account operated by the wife to which he does not have access.[32] Whilst he may have no access to this account now, I accept the wife’s evidence that he has had access to the financial records and bank statements of this entity in the past, including post separation.[33]
[32] Respondent husband’s affidavit sworn on 19 October 2020 at paragraph 7.
[33] Transcript day 1, page 21 at lines 35-40.
The husband is aware that T Global Pty Ltd has ongoing management and administrative overheads which include an office in OO Street and employees. He acknowledged this in his first affidavit affirmed on 2 March 2020 at paragraph 113 where he said :
[The wife] spent $264,741 on wages and subcontractors (including superannuation) to operate her consulting business in the financial year 2016. She spent $234,653 on these expenses in the financial year 2017. This included a salary of $120,000 [the wife] paid to herself in both years. [The wife] also spent approximately $33,000 on business travel and accommodation for each of those financial years…

In his affidavit affirmed on 19 October 2020 at paragraph 7, the husband said further: “…I do not know the management and administrative overheads for T Global Pty Ltd. [The wife] has not disclosed these particulars from FY17.” The husband accurately stated the position. The wife has not disclosed the quantum of the expenses referred to above for the last three financial years because she had not expended the funds to pay for the preparation of the relevant taxation returns. It is also apparent on her evidence that she has mentally struggled with dealing with the entire corporate and trust entities structure and with the parties’ accountant whom she views with an element of distrust, in respect of his being not impartial.
Prior to separation, the wife had a loan outstanding in the name of T Global Pty Ltd in the sum of $150,000. The initial Westpac Rocket Loan of $1 million, obtained by the wife, paid out this pre-separation debt of $150,000.
The wife used a further part of the $2.5 million borrowings obtained by her to pay her personal and T Global Pty Ltd taxation liabilities as they fell due. T Global Pty Ltd had, prior to separation, and ongoing, operating expenses that include rental payments, staff payments, and other payments incurred in the running of an office and a philanthropic endeavour. The wife’s evidence was that the company applies the income received by the entity in payment of its necessary overheads which support her philanthropy, and in payment of its taxation and other liabilities. There is no longer any salary payable to the wife nor has there been since 1 July 2019. Conversely, the husband’s evidence was that the VV Pty Ltd licence fees were paid to the wife (through her entity T Global Pty Ltd) to meet her discretionary expenditure and that the entity was operated for the purposes of receiving the wife’s consulting income. That of course has now ceased to be received by her. I accept the wife’s evidence as to the nature of her work now, and otherwise accept her evidence as to the operations of T Global Pty Ltd. As I have said I found her to be a credible witness.
The wife set out in her affidavit evidence of February and October 2020, slightly differing accounts as to her expenditure of the borrowings obtained by her. That did not impact adversely on the credibility of her evidence. In her later affidavit, she updated and was more precise about her expenditure. Doing the best I can on the evidence before me, the sum of $1,807,268 should be included in the asset pool because:-
1.The $150,000 loan repayment made by the wife in advance was a pre-separation debt which is clearly the responsibility of both parties. The principal sum of $150,000 repaid is not deducted from the sum of $1,807,268 as suggested by Senior Counsel for the husband in cross-examination of the wife. That principal repayment was of a pre-existing $150,000 differing loan. It was paid out. No monies from that repayment went to the repayment of the $2.5 million borrowings.
2.$110,000 was paid in interest repayments by the wife in respect of the loans for the period from March 2018 to February 2020. By the time of the trial this was an understatement of this amount. The wife continued and continues to pay this expense. Additionally, $270,000 of principal repayments on the loans were made by the wife in the period from March 2018 to February 2020. This resulted in a reduction in the principal sum. Thus that claimed amount of $2,077,268, has had deducted from it, principal repayment leaving a debt outstanding of $1,807,268. The wife clearly had the capacity from her own financial resources and/or the resource of the borrowings to make these repayments of principal. These actions highlighted her preservation of the parties’ asset pool in my view. In her subsequent affidavit of 9 October 2020, the wife’s evidence was that she had expended the total sum of $513,062 on the Westpac borrowings. These payments were not further broken down. The total sum as at February 2020 had been $380,000. The wife’s financial statements of both 18 February 2020 and 9 October 2020 included evidence as to her paying mortgage repayments in a weekly sum of $3,057. Over the eight month period between financial statements, the wife therefore paid out a further $105,976 to Westpac. The earlier total of $380,000 was then added to by this sum to make a total of $485,976. I can make no finding as to what was principal or interest. The wife’s evidence was that by October 2020, she had paid Westpac $513,062. There was, however, no explanation as to the differing $27,086 and I cannot make any finding as to that, including whether there was any further principal repayment.
3.The wife expended $502,236 for costs associated with the Suburb E property including the payment of utilities, maintenance costs, renovations, and insurances. Whether this sum was the original $240,000 as claimed or $502,236 makes no material difference to my assessment as to the need to include the debt quantum of $1,807,268 in the asset pool.
4.The wife expended $1,023,871 in taxation liabilities; and
5.The wife expended $104,000 for expenses relating to the children.
The total is $1,890,107 before provision for the wife’s own maintenance met largely out of her own income.
The wife has relied on the borrowings obtained by her together with her income, to maintain herself; to meet her financial obligations; to support Mr FF through the remaining years of his secondary education; and into University; to support Ms EE as she moved out of the D Street property and ongoing; to maintain the D Street property; and to fund the wife’s legal costs, accounting and investigative fees.
The wife’s income position has been inferior to that of the husband and one which would have provided for a modest lifestyle. Without the borrowings obtained by her the wife could not meet the expenses described above. The wife has legitimately needed funds to meet her, and in part the family’s expenses, those expenses being of a type commensurate with the parties’ standard of living during the marriage. The husband did not argue nor submit that the wife’s expenditure had been unreasonable, nor different in manner to that which typified each of the parties’ expenditure prior to separation as submitted in closing submissions by Queen’s Counsel for the wife. The husband, by contrast with the wife, has had a very large income available to him in the past four years. He has not needed to borrow additional funds to meet his expenditure and maintain his standard of living which has remained commensurate with that which the parties lived during the marriage. He has had surplus income.

THE ASSET POOL

REAL PROPERTY
PROPERTY	OWNERSHIP	VALUE
D Street Suburb E, Victoria	wife	$11,000,000 (based on N Group valuation report dated 22 October 2020)[34]
G Street H Town, Victoria	T Investments Pty Ltd	$4,000,000 (based on revised N Group valuation report dated 15 December 2020)[35]
J Street H Town, Victoria	T Investments Pty Ltd	$3,750,000 (based on N Group valuation report dated 16 September 2020) Less estimate CGT ($566,395) Selling costs ($93,500) Leaving $3,090,105
R Street S Town, Tasmania	T Investments Pty Ltd	$560,000 (based on Q Group single expert valuation report dated 13 October 2020)[36]
SUB-TOTAL		E $18,650,105 (assuming a sale of J Street H Town)

[34] Expert witness Mr PP’s affidavit sworn 26 October 2020.

[35] Expert witness Mr QQ’s affidavit sworn 18 December 2020.

[36] Expert witness Ms RR’s affidavit sworn 10 November 2020.

APPLICANT WIFE’S NON-REAL PROPERTY
PROPERTY	OWNERSHIP	VALUE
Motor vehicle 1	wife	$148,000 Less debt ($104,853) Leaving $43,147
Chattels in storage facilities	wife	$2,720 (based on single expert valuation dated 20 October 2020)
Jewellery (interim orders dated 28 May 2020)	wife	$3,590 (based on T Auctions valuation report dated 20 October 2020)
Chattels in Suburb E	wife	$36,670 (based on single expert valuation dated 20 October 2020 and updated on 23 October 2020)
Bank accounts	wife	$756,706 (Adjusted from $6,706 at the conclusion of the trial for the effect of orders made on 23 December 2020 as to the receipt by the wife of a partial property settlement of $750,000. Both parties were liable for one half of the insurance and repair costs of the Suburb E property, so no further was adjustment made.)
Westpac debt on the Suburb E property Rocket home loan #...60 Rocket home loan #...59	wife	$1 million $1.5 million Total $2.5 million Less: a) the sum of $422,732 spent from the facility on legal and accounting fees; and b) $270,000 on principal repayments[37] owing ($1,807,268)
SUB-TOTAL		E($964,435)

[37] Applicant wife’s affidavit filed on 9 October 2020 at paragraph 32(a).

RESPONDENT HUSBAND’S NON-REAL PROPERTY
PROPERTY	OWNERSHIP	VALUE
Westpac bank account #...40 as at 14 December 2020	husband	$8,273
Westpac bank account #...61 as at 14 December 2020	husband	$419,103
Westpac Altitude Black World MasterCard Credit Card account #...41 debt as at 10 December 2020	husband	($4,510)
Motor vehicle 2	husband	$120,000[38]
Chattels in H Town	husband	$34,068 (based on single expert valuation on 20 October 2020)
Chattels in Melbourne apartment	husband	$1,330 (based on single expert valuation on 20 October 2020)
Wine collection	husband	$131,690 (based on single expert valuation on 20 October 2020)
Golf club shareholdings	husband	$337,750 (HH Golf Club at $327,750 and II Golf Club at $10,000)
Husband’s paid legal fees	husband	$325,000 (based on husband’s oral evidence and costs letter)
SUB-TOTAL	$1,372,704

[38] Respondent husband’s financial statement filed on 2 March 2020.

T GROUP AND CHAPPELL PARTNERSHIP FINANCE TRUST
Westpac bank account #...60	T Investments Pty Ltd	$15,640
Westpac bank account #...33	T Finance Pty Ltd (“T Finance Pty Ltd”)	$3,436
Westpac: bank account #...14 Westpac bank account #...53 AB Bank Cash Holding: Account …47 Listed shares – Market Value	T Equities Pty Ltd (“T Equities Pty Ltd”) $2,817,021 $38,656 $176,055 $2,728,622.08	$5,760,354 (Figure from husband’s balance sheet less the $750,000 ordered to be paid to the wife on 23 December 2020 assuming the payment came from this entity) Leaving $5,010,354
Westpac bank account #...79 Livestock 58 head	T Business Trust	$67,393
Westpac bank account #...37 LL Licence Fee	T Australia Pty Ltd	$1,179,002 ($1,034 and $1,177,968) On 28 May 2020, a notation was made in the following terms: “C. The parties have agreed that for the purposes of final property settlement the LL Software licence/VV Pty Ltd has an agreed value of $1,177,968 and no valuation of this licens[c]e [sic] fee is being undertaken on the basis there is an agreed value.”
Westpac bank account number #...44	Chappell Partnership Finance Trust	$7,387
combined bank accounts Westpac #...88 and #...27	T Global Pty Ltd	$27,483 (was the subject of discovery and accepted on 21 December 2020)
TOTAL		$6,310,695

SUPERANNUATION

Westpac bank account #...60

Westpac bank account # …06

Shares Market Value

T Superannuation Fund

$273,890

$4,241,364

$2,181,340

$6,696,594

TOTAL

$6,696,594

STANFORD CONSIDERATION

The wife and the husband’s property interests are identified above. I am satisfied that in all of the circumstances of this case it is just and equitable to make orders adjusting the wife and husband’s property interests. Each of the parties seek that I make such adjustment and can reach no agreement as to how that should occur. There is no common use of the parties’ property post separation. The implicit and express assumptions the parties may have had as to the arrangements made by them concerning their property interests were brought to an end at separation and thereafter.

PROPERTY ORDERS

Being satisfied that it is just and equitable to make orders adjusting the property interests of the parties, what follows is a consideration of s 79(4) of the Act, set out below:-
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the Family Court in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.

CONTRIBUTIONS

An assessment of contributions is “holistic” in nature.[39] It is nevertheless of assistance to consider that evidence of contributions in the manner as set out below to provide some structure to the task.
[39] Dickons & Dickons [2012] FamCAFC 154, [24].
The wife’s position as to contributions was that a % adjustment should be made in her favour for her contribution of the LL Software and her licencing rights. The husband’s position as to contributions was that the contributions of the parties should be assessed as equal.

Commencement of cohabitation

When the parties commenced their cohabitation in 1994 or 1995, the husband had no assets of significance. The wife had exclusive rights to the use of the LL software as described in the following paragraphs. Both were employed with the wife receiving an income significantly in excess of the husband as described in paragraph 85 below. That income of the wife, I accept, was used in the payment of the $83,500 deposit (being the 10% required) for the purchase of the parties’ first property in SS Street, Suburb TT in March 1995. The property was purchased through one of the parties entities, with that entity obtaining a mortgage (for the balance of the purchase price) from Westpac Banking Corporation. In the course of this long marriage, the wife’s payment of this deposit and her majority shareholding in T Investments Pty Ltd is not a contribution of such significance that any adjustment in respect of same is required .The husband had already, and in 1995, established a significant part of the corporate group of trusts and entities that was to manage the parties’ income and expenses and to eventually accumulate their wealth (“the T Group”). In order to settle the purchase of the Suburb TT property, the parties had borrowed funds through one of the entities in the T Group of which the parties were co-directors. Initially, the wife held 11 of 12 ordinary shares, and the husband held 1 of 12 ordinary shares in the relevant entity being T Investments Pty Ltd. In 2013, the share structure was changed to achieve equality within T Investments Pty Ltd and otherwise equalization of the parties’ various corporate interests.
The wife’s father developed the LL software system as referred to above, in 1985.
LL software was a software product designed and maintained by the wife’s father and her immediate family out of City UU, in the USA. Her father operated the business, and the wife had worked in the business in the USA.
At the commencement of cohabitation, the wife was engaged as a Consultant in advisory services at X Corporation. As part of her employment, the wife was paid a salary of at least $550,000 per annum. The wife’s evidence was that it was around $800,000. She had no supporting evidence to establish her claim and her recollection was not acute. The husband’s evidence was that he recalled the amount of her salary at the time because he had arranged for her income protection insurance shortly after she commenced her role at X Corporation. His evidence, which is preferred, is that the wife was earning approximately $550,000 per annum together with receipt of her by the LL software licence fee. That fee was an amount paid to the wife in the sum of $250,000 per annum by X Corporation for its right pursuant to a services agreement entered into between the wife and X Corporation, to use the wife’s family’s LL software toolsets and procedures as described by the wife. The husband was working as a manager at X Corporation. He did not recall his exact annual income, but stated that it was likely to have been around $80,000 although it may have been approximately $50,000 as stated by the wife. Both parties agreed the wife’s income was around 10 times greater than that of the husband.

During Cohabitation

Throughout the course of their cohabitation and marriage, the parties jointly decided how to advance their family wealth and the wellbeing of their family. The wife had become a partner at X Corporation in the late 1990s and the husband in 2000. In 2004, the wife significantly withdrew from income producing work to spend more time in a care giver role to the children of the marriage, as discussed and agreed between the parties. Both parties were very hardworking and successful in their respective careers. The husband’s income became over time considerably in excess of that of the wife such that any contribution made by the wife at the commencement of the parties’ cohabitation in this regard was balanced by those other different and equal contributions made by the husband as further discussed below.
In or around 1996, X Corporation ceased using the LL software. The parties established a company known as VV Pty Ltd for them to further develop and operate the software product as licenced by their company T Australia Pty Ltd. That licence had come about because of the wife’s exclusive rights to use the product together with the husband’s subsequent negotiations with the wife’s family which lead to a formal agreement between LL software and the parties company T Australia Pty Ltd, which formalised the Australasian distribution and consulting rights for VV Pty Ltd.
After VV Pty Ltd was established, it took four to five years to make the first sale of the product. The husband stated in his oral evidence that:[40]
Husband: I acknowledged that it was her contacts, so I acknowledged that Mr L and Mr M were contacts that [the wife] had worked with. We agreed to establish a company to try and find a way to commercialise the value of that licence. It took us four to five years to make any money at all, and a lot of hard work, and…
Dickson Q.C.: You agree that it was a valuable asset that she brought in which, through some adept work by both of you, you would say, enabled her to bring in very significant revenues for the years thereafter?
Husband: Well, frankly I’m going to say this: what it was, was an opportunity. So actually, [the wife] had found a way to commercialise it in X Corporation. As it stood there – there was lots of things going on at this time, including in the States. The parent entity was insolvent…
[40] Transcript day 2, page 148 at line 10 to page 149 at line 3.
Dickson Q.C.:So what?
Husband: Well, so the business was potentially collapsing, not able to support the product, not able to – so the commercial viability of the product was very tenuous. [The wife] was estranged from her father, so she had no ongoing relationship with her father. So I had to step in and effectively make arrangements for us to have the ability to distribute the product locally, and it took us many years to actually get the product to a place, including that the business in the US had to effectively become more financially stable for us to convert it, and – but I openly acknowledge – so [the wife] has all the knowledge around the product, and the product’s capability, and…
Husband: [The wife] was – even though she was unable to work directly in the business, because it was directly competitive with her business at X Corporation, which it wasn’t with mine, I was in a very different area. So [the wife] had no day to day involvement in the establishment of VV Pty Ltd, or the operation of VV Pty Ltd, between when we started it and when we sold it.

The VV Pty Ltd business steadily grew.
The evidence of Mr L, the founding employee of VV Pty Ltd, a Senior Partner at VV Pty Ltd for 20 years and currently an Engagement Director with VV Pty Ltd, was directed to that growth. Mr L had long-standing relationships with each of the parties, having first met the wife in 1992. He worked with her directly from 1995 on the LL Software Implementation at government agency (at which time the wife was living in Australia) and subsequently he was involved with both parties in the establishment of VV Pty Ltd.
In February 1997, Mr L was the first employee of VV Pty Ltd, followed by Mr M in April 1997. In 1998, VV Pty Ltd expanded its product offering and the scope of its operations and hired Mr WW to provide sales and marketing support. Mr L recalled that the wife had by then transferred the sub-licence to the LL software product sales from X Corporation to VV Pty Ltd with the goodwill and support of her relationship with X Corporation.[41]
[41] Mr L’s affidavit sworn 8 October 2020 at paragraphs 6-8.
It was the view of Mr L that the wife’s methodologies, expertise and technical knowledge, together with her contacts, global experience and leadership skills were all skills critical to VV Pty Ltd’s operations. The husband supported VV Pty Ltd in his areas of expertise, namely administration and business management together with his ability to provide advice to the three initial employees. In the early years of the business the husband worked hard in his role to establish the business. It was modestly profitable.[42] As the business grew, and for the final decade of operating the business the parties generated between $750,000 and $1.5 million per year in profits, which was paid to the T Group.
[42] Respondent husband’s affidavit sworn 2 March 2020 at paragraph 29.
The parties then sold VV Pty Ltd, on the following terms:[43]
(a)a three year earn out, where the parties retained the profits of the business for three years; and
(b)thereafter, an arrangement involving a recurring revenue stream whereby VV Pty Ltd paid a monthly licence fee to T Australia Pty Ltd as trustee for the T Business Trust for the rights to use the LL software as part of its consulting business.
[43] Ibid at paragraph 30.
It was Mr L’s further evidence that the future revenue stream currently paid to T Global Pty Ltd is uncertain. In paragraph 12 of his unchallenged affidavit evidence he said as follows:[44]
It is important to note, [the agency] intends replacing [LL Software] with the [XX] product. [The agency] will simply move to the [XX] product when available. This will reduce the value of the [LL Software] distribution rights to [VV Pty Ltd]. It will affect any valuation associated with [LL Software] by [VV Pty Ltd]. The future payment of sublicense fees are significantly at risk.
[44] Mr L’s affidavit sworn 8 October 2020 at paragraph 12.

J Street H Town

On 1 July 1999, the parties purchased 200-acres of farming land at J Street, H Town (“the J Street Property”). They purchased the farm for $1.2 million. The parties paid a deposit of 10% and the balance was obtained with a mortgage to Westpac Banking Corporation. It was registered in the name of T Investments Pty Ltd.
The farm was part of a larger farming property which had been subdivided. It was fenced and had some farming infrastructure including troughs. The parties added further infrastructure over the years, including stock yards. The parties purchased around 100 head of livestock to run on the property.[45] The husband did the farming and stock work on the weekends, including vaccinations, birthing, tagging, castration and drenching, and employed a local farm hand to come to the farm during the week to pump the water for the livestock and put the feed, out and otherwise attend at the farm when the husband was travelling for work. The wife visited the property each weekend with Ms EE and Mr FF, while staying in local bed & breakfasts. When the children were in their teenage years, they assisted the husband with the stock work on some weekends.[46]
[45] Respondent husband’s affidavit filed 2 March 2020 at paragraph 42.4.
[46] Ibid.
The parties implemented a native revegetation program at the farm and had planted, by a landscape gardener and his team, a number of native trees, bushes and shrubs. The parties assisted in this task. In total approximately 10,000 trees were planted. The parties originally intended to build a home on the farm and engaged a draftsman to prepare conceptual drawings.
The parties were not happy with the drawings, so they met with the architect Mr YY and went to see a number of houses he had designed. Ultimately, they did not proceed with the build, as the farm did not have power or water services. The cost to establish those services, and build the house they wanted, was excessive.
The property is unencumbered and will incur Capital Gains Tax (“CGT”) upon sale. The husband indicated a clear desire not to retain this property. As the wife will now have proprietorship of the G Street property, she may not seek to retain ownership of J Street. I consider it just and equitable as between the parties for the wife to have a short period of time to determine whether she wishes to retain J Street. That period of time should be 7 days from the delivery of these reasons for judgment. In the event the wife does not wish to retain J Street, then the property shall be sold by the parties with or without the assistance of an agreed third party. The CGT and selling expenses will be paid before a division of the remainder shall occur between the parties.

Leaving X Corporation

In 2004, the husband left the X Corporation partnership. Together with the head of corporate recovery at X Corporation, Mr AF, the husband established the accounting firm, DD Firm with 12 other founding partners (14 partners in total). The husband received a payment of $1.5 million from X Corporation when he left the partnership. It was applied to meet the family's expenses and investments.
The husband’s income increased following his departure from X Corporation.[47] He earned $39.165 million over the course of his partnership with DD Firm between July 2004 and July 2019.[48]
[47] Ibid.
[48] Ibid.
The wife left X Corporation shortly after the husband. The parties had discussed the wife reducing her working commitments to spend more time with the children. The parties’ marriage was suffering with both working long hours.[49]
[49] Ibid at paragraph 32.2.
After the wife resigned from X Corporation, she then accepted a voluntary position as Victorian Chairman of ZZ Foundation.

G Street H Town

In June 2004, the parties purchased the 25-acre G Street property nearby to J Street, for $1.5 million. [50]This was again funded with a nominal deposit and the balance with a mortgage to Westpac Banking Corporation. The property was registered in the name of T Investments Pty Ltd. The G Street property was a five bedroom house, built by the previous owners.[51] The parties were attracted to it as it had sheds, paddocks for horses, trees, a hill overlooking the water and was proximate to J Street, making it easy to supervise the then proposed J Street build.[52]
[50] Ibid at paragraph 40.
[51] Ibid at paragraph 41.
[52] Ibid.
Not long after the parties purchased the G Street property, it became clear that renovations would be immediately required as the pool was broken, and the roof leaking.[53] The parties started painting the walls and replacing the carpet, the wife sourced furniture to bring the “spaces to life.”[54] The wife wanted to renovate the property, and the husband agreed on the basis that they did not undertake any structural renovations.[55]Eventually, the parties decided to abandon the concept of building on J Street and decided to renovate and develop the G Street property.[56]
[53] Ibid at paragraph 42.
[54] Ibid.
[55] Ibid at paragraph 45.3.
[56] Ibid at paragraph 43.
The parties engaged an interior designer to project manage the renovations. The wife was actively involved in the design process, in particular because she had then availability to be so involved, to a far greater extent than the husband. The wife had withdrawn from her busy employment around that time, as encouraged by the husband.
The wife spent a number of years involved in the developing and renovating of the G Street property, working side by side on most weekends with local tradesman and her children in tow. The renovation was to benefit, and be for the enjoyment of, the family.[57] The wife oversaw the installation of underfloor heating, new floors and new tiles as well as massive restructuring of the garden and outdoor areas including the building of customised pedestals and placement of significant sculptures.[58] The husband focused on his work which funded the costs of the renovation. His involvement was importantly, but not limited to, managing the administration of the project including its costings.
[57] Ibid at paragraph 44.
[58] Ibid.
The wife was passionate about the renovation task. The husband was also, but in a less hands on way. The renovation cost was “a few million dollars”. The renovations took about two years to complete.[59] They included no structural renovations to the home.
[59] Ibid at paragraph 98.2.
The parties purchased five horses to stable at the property, including two ponies for the children to ride when they were younger .The husband had ridden horses when he was young, and wanted the children to learn how to ride.[60] He was responsible for the care of the horses and had various local residents assist him over the years during the week when required.[61]
[60] Ibid at paragraph 45.6.
[61] Ibid.
Both parties enjoyed this property in the company of their children for many years. Much time was spent there by each of them , the husband’s evidence being that he spent more time there in the years leading up to separation than the wife. The wife does not accept that description. What is certain is that each used the property in a limited way due to other constraints upon their time during the week, and other accommodation being available for them to live in. The separation of the parties made clear to them that there would be no easy resolution to them each wanting ownership of this property. That dispute has continued and required judicial determination.

S Town

In 2010, the husband purchased his parents shack at R Street S Town in Tasmania ("S Town") to assist his parents financially. He paid market value for the home (with a valuation) of approximately $200,000. He registered S Town in the name of T Investments Pty Ltd. His mother continues to holiday at S Town regularly including every Easter and Christmas.[62] The wife was supportive of this expenditure. There is no dispute between the parties that the husband will retain this property.
[62] Ibid at paragraph 48.

D Street Suburb E

In about May 2011 the husband purchased the Suburb E property. Whilst the wife had told the husband the property “had potential for our family” she had not otherwise expressed an interest to purchase the property, and “was shocked” when told by the husband that he had in fact purchased it as the matrimonial home. Regardless, the parties and children left the Suburb TT property and took up occupation of the home in D Street. The parties paid $7,100,000 and borrowed to fund the purchase using the security of the G Street and J Street properties. Later, in or about August 2012, they applied the net proceeds of sale of the Suburb TT property to reduce their borrowings on the Suburb E property.
The parties purchased the Suburb E property from funds within the T Group structure (where most of the husband’s personal exertion income; and their joint investment income, was paid) and from funds obtained through a mortgage. The parties registered the Suburb E property in the wife’s personal name.
Neither party sought to retain this property and it shall be sold. No CGT will be incurred in respect of this property. The wife has remained in occupation of this home since separation. She should continue to have ongoing sole occupation of the property until such time as she takes up occupation of the G Street property.

Other

Throughout the relationship, the husband managed the parties’ finances and established their corporate structures (except T Global Pty Ltd) with their accountant.[63] The investments that the husband made were through the group, and not held by the husband.
[63] Ibid at paragraph 39.6.
The husband’s income, initially from X Corporation and then from DD Firm, was applied to meet the family's expenses and investments and to pay down bank loans. That income was apportioned across the T Group's trusts, and to the husband personally. Until 2004, the wife’s consulting income from X Corporation was also paid into the group to meet the family's expenses and investments.
The parties operated joint bank accounts through the T Group.
After the wife resigned from the X Corporation partnership in 2004, she commenced consulting and other work including philanthropic work through T Global Pty Ltd. This was a company established by the wife in 2010. Initially, the income from the business was generated by the wife’s consulting and board fees.[64] The wife established an office in Street, Melbourne. She employed staff members including an office manager. She retained her income and it was no longer paid into the T Group of entities. Her net income was however applied for the benefit of the family.
[64] Ibid at paragraph 34.3.
In 2016, the wife received an inheritance from her father of $37,000. These monies were applied to pay household expenses and travel by the wife to the US to support her mother and family members.

Post Separation

At separation in June/July 2017, Mr FF was in year 11 at school and Ms EE was in the second year of her university degree. She resided at a university college and Mr FF at home. Each of the parties provided financial and other support to their children. The wife has remained living in the Suburb E property meeting its expenses for the most part. The husband has resided in rental accommodation. The husband has retained his income and required no borrowings. The wife has retained her income and required borrowings as discussed in paragraphs 64 to 76 of these reasons.

Conclusion as to Contribution

Consistent with the principles discussed and applied in the decision of the Full Court in Jabour & Jabour [2019] FamCAFC78, historical contributions of capital ought not result in significant departures from equality of contribution in longer relationships where subsequent contributions have been made by each party both in relation to the conservation and maintenance of those assets, and in the myriad of other relevant forms of contributions which arise over time.
Senior Counsel for the husband submitted in closing submissions that the husband and wife have each made significant direct and indirect contributions to the generation of income from the LL resource as well as a myriad of other relevant forms of contribution over the many years, such that the parties’ LL investment ought not be the product of any assessment of contributions disadvantageous to one party or the other. I agree with this submission as made by Senior Counsel for the husband.
Whilst the wife had the initial contribution of the LL software and its licence fee, the husband’s contribution, hard work and expert skills were required to harness that contribution, such that it became of significant financial benefit to the parties.
As further submitted in closing submissions by Senior Counsel for the husband and equally in my view, in light of the very significant contributions made by each of the parties in all relevant senses, financial and non-financial, direct and indirect, over a period of 24 years, raising two children and amassing, conserving and maintaining a significant fortune through their joint endeavours and hard work, no departure from an equal assessment of contributions would be just and equitable. I conclude no adjustment beyond equality, on the basis of contribution, should be made.

RELEVANT SECTION 75(2) MATTERS

The husband’s Senior Counsel submitted that no adjustment to the equal contribution-based assessment of the Court was required to achieve a just and equitable division of property between the parties. The wife’s Queen’s Counsel submitted a % adjustment in her favour was required. This percentage adjustment coupled with the percentage adjustment for contributions as argued by the wife’s Queen’s Counsel should equal a total division of 55% to the wife and 45% to the husband.

The age and state of health of each of the parties

The husband is some nine years younger than the wife, he is in good health and certainly has the opportunity to keep earning at a very high level if he chooses to do so. He has no health issues that have impacted his ability to earn income. The wife has had substantial health issues.[65]

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

[65] Applicant wife’s final submissions filed 5 February 2021.

The husband’s Senior Counsel submitted in closing that the wife’s ongoing earning capacity was “entirely opaque,” a submission with which I do not agree.
The wife’s earning capacity is considerably less than that of the husband by virtue of her age, health and her effective retirement from any significant income producing work since at least 2018, and otherwise from income producing work of any sort since November 2020. By contrast the husband has had increasingly remunerative employment in recognition of his skills and experience built up over many years. He is really, as was said by the wife in her affidavit evidence, at the “zenith” of his career.[66] He has the capacity to earn a significant income for many years to come albeit he speaks of retirement in a few years.
[66] Applicant wife’s affidavit sworn 9 October 2020 at paragraph 24.
In April 2019, the husband accepted a position as a Board Member with AC Ltd (now “AD Group”). In July 2019, he was then appointed as the Chief Executive Officer and resigned as a Board Member.[67] He continues to be employed as CEO of AD Group. In relation to his income for the financial year ending 2020 he states:[68]
(a)He received $1,261,973 including superannuation;
(b)He was awarded a short-term incentive in the form of a $780,000 gross cash bonus (approximately $390,000 net of taxation);
(c)He has been given the opportunity to participate in a share options/rights plan for employees to the equivalent of $630,000 which will vest in three equal tranches on 15 October 2021, 2022 and 2023. This gives him the right to acquire ordinary shares of capital of AD Pty Ltd in tranches, which then vest in each consecutive year provided that he remains in continuous employment with AD Pty Ltd. The share rights have not been issued and he has not exercised the right to acquire the shares.
[67] Applicant wife’s affidavit affirmed on 18 February 2020 at paragraph 80.
[68] Respondent husband’s affidavit sworn 30 September 2020 at paragraph 46.
The wife’s annual income of $62,313 per annum is derived from the following sources:[69]
(a)Dividends receive from NN Limited   $9,724
(b)Interest derived from the Westpac Banking Corporation   $4,368
(c)T Global Pty Ltd   Nil
(d)A Government Department                  $326
(e)The MM Foundation (until November 2020)   $47,895
[69] Ibid at paragraph 83.
The property and financial resources of each of the parties is as set out elsewhere in these reasons. I am mindful that the wife has control of the distribution of the licence fees received by T Global Pty Ltd, and that this presents to her a financial resource for so long as those monies are paid. It will be a matter for the wife how best to use this significant financial resource to provide for her ongoing needs. I am mindful that the licence fees income has been capitalised in the asset pool and thus in respect of a consideration of the s 75(2) matters these monies represent, effectively, no income to the wife.[70]
[70] GBT v BJT 2005 FamCA 683 at [67].

The responsibilities of either party to support themselves and anyone else, including children;

Both children are over the age of 18 years but each child remains a university student. To support their adult children, each of the parties provide regular monies to each of the children. That support is a responsibility the parties both feel as parents of their children. No doubt because it would never have been contemplated by the children, or either of their parents, there have not been adult child maintenance proceedings on foot.[71]
[71] Pursuant to s 66L of the Act.
Clearly each party has a responsibility to support themselves and there are considerable funds in the parties total asset pool including their superannuation entitlements to enable this to occur. The wife will need however a small adjustment of that asset pool in her favour to provide for her own support and to meet her liabilities.

Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

Throughout the course of their cohabitation and marriage, the parties had a high standard of living. That standard of living was commensurate with their receipt of considerable income. The separation of the parties has not impacted the husband’s ability to continue to have a standard of living similar to that which he had before separation. The wife’s standard of living has also remained similar to that which existed prior to separation by reference to her continued occupation of the former matrimonial home. Otherwise her standard of living has suffered by her inability to access the parties’ family property in H Town, and by her having less funds available to her, by comparison with the husband, and in the context of the expenses which she has had to meet. To that extent, those usual expenses have been curtailed. In all the circumstances of this case, the standard of living that is reasonable for each of the parties is a very comfortable one wherein they should have funds available to them, sufficient for their needs and expenses. To achieve that outcome, it is necessary that a small percentage adjustment of the parties’ asset pool be awarded to the wife, given the great disparity in the parties’ respective incomes. Whilst the wife’s maintenance is not under consideration, the wife’s earning capacity is significantly less than that of the husband because of the joint decision made by the parties in 2004 for the wife to cease her employment with X Corporation and thereafter receive significantly less income.
Additionally the wife has debt which the husband does not, including her legal and accounting fees; the debt to the litigation funder; and further debt incurred in respect of her other expenses in quantum not able to be readily determined.

Conclusion as to s 75(2) matters

There should be a percentage adjustment to the asset pool of the parties in the wife’s favour of 3%.

CONCLUSION

It is common ground between the parties that an adjustment of property interests pursuant to section 79(2) is required in order to achieve a just and equitable outcome.
With the exception of an October 2018 X Corporation invoice and payment and a now concluded role with the MM Foundation, the wife has not earned active income for some time. She is 61 years old and has effectively retired and reached preservation age. There is no reason to believe that she has prospects of returning to significant paid work. As submitted in closing submissions, by Queen’s Counsel for the wife, the topic was canvassed in cross examination and it was not asked to the effect that she should be out looking for work, but rather that it was reasonable that she (and therefore the husband) should retire, given their wealth.
Each of the parties’ Counsel submitted in closing submissions that further orders will need to be drafted by them, following the delivery of judgment on the issues in dispute between the parties, to implement my decision.
The parties’ superannuation entitlements have already been the subject of a superannuation splitting order made by me on 27 March 2020. The effect of those orders, made by consent, is the equalisation of the parties’ entitlements once implemented by them.
The accounts for the entities are such that the wife has a significant loan account liability to T Investments Unit Trust. While the husband initially sought orders to provide for that loan to be forgiven, it is the wife’s position that an order should be made pursuant to s 90AE of the Act to substitute the husband for the wife as the creditor, effectively leaving the husband to manage that loan.
The order sought by the wife was as follows :
2.3.3.4. Renounce all claims against, and relinquish all entitlements to each of the accompanies and trusts comprised in the Chappell Group of whatsoever nature, including unpaid beneficiary entitlements and loan accounts (and any and all claims of the Husband personally); …
2.3.3.6. Assign to the Husband all unpaid beneficiary entitlements she may have, consent to her removal as a beneficiary, and agree not to receive any future distribution from, each of the trusts comprised in the Chappell Group; …
Senior Counsel for the husband indicated during the course of the trial that the above order as proposed by the wife was acceptable to the husband. It should form part of the orders.
The parties also agreed that the wife would retain the three business names and all derivations as they relate to the group of corporate entities and trusts. In particular, the wife shall retain the VV Pty Ltd licence and shares in LL Pty Ltd together with the VV Pty Ltd licence fee and the LL software, toolsets and procedures. Likewise, the wife should retain T Global Pty Ltd, the entity established by her in 2010. The wife is and has always been the sole director of the company. If there is any issue now as to ongoing ownership and control of this company, it should be retained by the wife.
The parties both agree that it would be very difficult for them to co-operate in respect of the sale of the Suburb E and J Street properties. The husband is overall more emphatic about that. He sees no situation in which the parties could engage. I am not inclined however, to have either solely responsible for any sale. I have formed the view that will lead to greater delay and a greater degree of allegation and counter-allegation with potentially further costs being incurred, and potentially more acrimony. At some point the parties must co-operate in selling their assets. They are clearly sufficiently business savvy to do so. It goes without saying they have the obvious intellectual capacity to do so. Of course it can be with the assistance of an agreed third party and I note Mr AE has been suggested as a person who might undertake this task. If no third party is willing to undertake the task, such sales can occur within the parameters of rigid Court orders. I am also of the view that the sale of these two properties should occur promptly. That can be assisted by the wife having a sole use and occupation order in respect of the G Street property. The Suburb E property can be placed on the market within 90 days after the wife takes up residence in the G Street property, subject to any contrary views expressed by the selling agent with which the parties agree or subject to any agreement of the parties. There is otherwise no reason for the sale of the J Street property to be delayed beyond 60 or 90 days save by virtue of an agreement between the parties.
The parties’ asset pool, excluding superannuation, should be divided between them as to 53% to the wife and 47% to the husband. This results in a receipt by the wife of a further $1,923,938 beyond that obtained by the husband in a total pool of approximately $32,065,633 inclusive of superannuation monies. In my view, such division is a just and equitable one in all of the circumstances of this case as described in these reasons.

I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

Associate:

Dated: 24 June 2021