Charnock and Charnock

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHARNOCK & CHARNOCK

[2017] FCCA 2871

Catchwords:
FAMILY LAW – Protracted property dispute – each party accusing the other of failure to disclose – each party alleging enormous wastage by the other – both parties producing self-serving gigantic tables in support of their allegations– factual bases underpinning tables not made out – Court not accepting either party’s conspiracy theories – unusual marriage sundered in 2003 but financial interaction continuing to 2013 – adjustment of 15% in favour of husband in respect of non-superannuation assets – each party to retain own superannuation.

Legislation:

Evidence Act2008 s.140

Stanford & Stanford (2012) 247 CLR 108

Applicant:

MR CHARNOCK

Respondent:

MS CHARNOCK

File Number:

BRC 9003 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

23, 24 and 25 October 2017

Date of Last Submission:

25 October 2017

Delivered at:

Dandenong

Delivered on:

7 December 2017

REPRESENTATION

Counsel for the Applicant:

Mr G. Gunn

Solicitors for the Applicant:

Freeman Lawyers

Counsel for the Respondent:

Ms C. Ben-Simon

Solicitors for the Respondent:

Kevin Davine and Sons

ORDERS

The Wife pay to the Husband the sum of $355,986 (“the payment”) on or before 7 February 2018 (“the date”).
Contemporaneously with the payment:
(a)The Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife, at the expense of the Wife, all of his right, title and interest in the real property situate and known as Property A, being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”);
(b)The Wife indemnify the Husband against all payments and liability pursuant to the mortgage registered No. (omitted) to (omitted) Bank (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property.
In the event that the whole of the payment has not been made by 7 February 2018, the Husband and Wife sign all such documents and do all things necessary to sell the real property as soon as practicable and upon completion of the sale, the proceeds of the sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge the mortgage and any other encumbrance affecting the real property;
(c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate fixed as the penalty interest rate for Victoria adjusted monthly from the date to the Husband;
(d)Fourthly the balance to the Wife.
Pending the payment or completion of the sale:
(a)The Wife have the sole right to occupy the real property and during such right of occupation, the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.
The parties do all things necessary to vest the (omitted) shares held on trust for their daughter in the daughter’s sole ownership.
The parties sell their farming machinery with the net proceeds to be divided equally between them.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the property being deemed to be in the possession of the Husband and Wife);
(b)Insurance policies remain the sole property of the owner/beneficiary named therein;
(c)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
There be liberty to apply in respect of the implementation of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

BRC 9003 of 2013

MR CHARNOCK

Applicant

And

MS CHARNOCK

Respondent

REASONS FOR JUDGMENT

Introductory

This is a spectacularly dispiriting property dispute. Leaving aside add‑backs, which are a major feature of the case, the property pool is, in broad terms, around about $800,000 plus superannuation (which is substantial). The parties have both expended well in excess of $100,000 in endless discovery fights which, as will be seen, have proved totally pointless. The husband’s position is that there should be an equal division of both superannuation and non‑superannuation assets. The wife’s position is that there should be an equal division of property but superannuation should remain undisturbed. For the reasons that follow, I am going to order that there be a division of the parties’ non‑superannuation assets as to 65 per cent to the husband and 35 per cent to the wife but order that each party retain their own superannuation.

Agreed Facts

There are a number of facts that, in my view, are agreed or undisputed. The husband was born on (omitted) 1957 and the wife on (omitted) 1960. They cohabited for some time, about a year, before marriage on (omitted) 1985. The date of separation is vividly in issue.
Their daughter, Ms E, was born on (omitted) 1987. She works in Melbourne but lives with her mother at (omitted).
The husband has been a (occupation omitted) throughout his life, although he now suffers significant shoulder difficulties which makes working for him much more difficult. The wife has worked with (employer omitted) for about 40 years (and certain predecessor (employers omitted)) and is now employed by a company which I shall refer to as (employer omitted).
The wife has deposed that on Christmas Day 1993, her mother‑in‑law informed her that the husband had been adulterous. She has deposed that on that day, she took off her wedding ring and that she told the husband that the relationship was over. She has deposed that no sexual intimacy ever took place between her and the husband thereafter. She was not cross‑examined as to these assertions.
Despite these matters, however, the parties continued, to an extent, to live in a relationship. The husband, whose (occupation omitted) took him far and wide, returned, on any view of the matter, for about a month at Christmas and for other periods during the year. There was some dispute as to the extent of such visits, but they are not material. These visits were clearly marked by a measure of tension between the parents.
The husband left the (employer omitted), it is agreed, in (omitted) 1997. He has deposed that he returned home to help look after Ms E. Although there is dispute as to the extent to which he, in fact, contributed to the care and upbringing of Ms E during this period, and as to its length, there is no doubt that he did return for some period of time before he re‑enrolled in the (employer omitted) in (omitted) 1990.
The wife, who clearly, as a (occupation omitted), had more insight into financial matters than the husband, set up an account for the husband immediately after marriage which I shall refer to as the (omitted) account. She also set up her own account, which was the (omitted) account. The extent of the parties’ capacity to draw on each other’s accounts was a matter in issue in the proceeding, and vividly so.
The parties have bought and sold various properties during the currency of their relationship, both before and after the alleged break in the relationship in 1993. These are set out in the parties’ affidavits and are not, in truth, the subject of very significant controversy. In my view, the parties’ past dealings with properties are essentially irrelevant save to the extent that I traverse the controversies in my description of the oral evidence. The fact is that the parties now possess a home at Property A, the value of which was the subject of strenuous disagreement until trial (no less than three valuers were engaged) but now conceded to be worth $1,020,000. It is encumbered by a mortgage of some $604,000. The parties also possess net proceeds from the sale of some land at Property B worth $406,344. Leaving aside superannuation and the vexed issue of add‑backs, that is, by and large, the property pool.

Stanford & Stanford: The Preliminary Issue:

The High Court has made it clear in Stanford & Stanford (2012) 247 CLR 108 (‘Stanford’) that the first task of the Court in a property dispute is to identify the property interests of the parties and determine whether it is appropriate that there be a property division. In this case, as foreshadowed in Stanford itself, the parties both have readjusted their circumstances following separation (whichever date is adopted), and both desire a property division, and it is plainly just and equitable that there be one.

The Parties’ Affidavits:

The parties have filed no less than 163 separate items on the court file, which runs to some seven volumes. Substantial tranches of material were being filed, in breach of earlier court orders, right up to the moment of trial itself. In many ways, the parties’ first two affidavits set out the history of the parties fairly completely, and the agreed facts I have referred to are taken from those two affidavits. The parties’ affidavit material is grossly prolix and accompanied in many instances by schedules of assertions as to financial misconduct by each of the parties.
There is, however, no objective accounting evidence to support the various assertions the parties make. The schedules prepared by the parties are self‑serving and, as the wife points out, at least in some instances, clearly wrong. The notion that the Court should, as it were, go through these schedules itself with a calculator ready to hand is, in my view, radically methodologically unsound. This is all the more so given that the task imposed on the Court by the Family Law Act is to produce a result that is just and equitable, not one which reflects fine points of accounting, which the Court as presently constituted is not, in fact, equipped to give any event.
In the peculiar circumstances of this case, it is appropriate to commence with what the parties said at Court. What follows is, of course, taken from my notes and does not purport to be a transcript. It does, however, record the aspects of the evidence that struck me as being of significance.

The Opening by Counsel for the Husband

Counsel’s opening bears some attention, bearing in mind the way the case has proceeded. Counsel pointed to a summary of cash withdrawals allegedly made by the wife annexed to the husband’s affidavit filed on 12 October 2017. These were an addendum to affidavits filed in 2016 and earlier in 2017. It should be noted that the 76‑odd pages of calculations cannot have been prepared by the applicant husband. The task would have been beyond him (and me too).
It was put that the wife had withdrawn cash in small amounts, usually $200, and that over the 10 or 12 years with which the Court was concerned, the amounts were over $1 million. It was put that the wife’s version of the pool was worth three and a half million dollars and that of the husband four and a half million dollars. The non‑superannuation pool was largely explained by growth in property values. The parties had similar earnings until the latter years, when the wife’s went up from approximately $80,000 to over $300,000 on occasions. Substantial amounts were made post‑separation. A document which I marked for identification as MFI1 was tendered, supporting the competing versions of the pool of the parties.
The husband, it was submitted, was a 40‑year (occupation omitted) and the mother a (occupation omitted). Both parties have withdrawn cash from the pool. The husband’s affidavit filed 23 July 2016 shows cash withdrawals he did not make, which were not mortgages or normal expenses. It was put that the wife had siphoned money out in a Byzantine way. The husband knew there was more money in the pool, but it was hard to find out. Thirty seven subpoenas and four Notices to Admit Facts and a Notice to Produce were filed.
The husband left bank accounts to his wife and did not know what the money was used for. An inference was to be drawn from the small nature of the withdrawals made, which were unusual. The source of the funds were the wife’s wages and sales of shares. The Court was asked to infer that the wife was not forthright in document production, being a (occupation omitted).
Counsel touched on the inheritance received from the wife’s mother. An interest in a house was transferred to her sister for love and affection. This was a quarter‑share not disclosed in the Financial Statement. It was submitted that there should be no more than 60 per cent awarded to the husband of the property pool, but it depended upon how the pool was to be ascertained. It was submitted that there had been a long marriage.
I pause here to emphasise that this opening, consistent with the way the case had been conducted up to trial and, indeed, through to final submissions, has been that the wife has, in some fashion not easily proven but to be inferred, siphoned huge amounts of money off, to her own benefit. The Court is, in effect, being asked to infer that she has either wasted this money, on gambling or some such other activity, or has stashed it in an account which has not been able to be found. These are serious allegations which bring into play the operation of section 140 of the Evidence Act2008 (Vic).

The Evidence of the Husband

The husband adopted his affidavits as true and correct. He is a retired (occupation omitted).
Under cross‑examination, the husband confirmed that he retired from the (employer omitted) on (omitted) 2017. He had worked as a (occupation omitted). He had been 42 years in (employment omitted). He was cross‑examined about work he had conducted for a couple known as (omitted), who have a farm. There was quite extensive cross‑examination designed to show that the husband had worked substantially for this couple, for whom he would make purchases and take items out to the farm. In my view, this cross‑examination was typical of the mutual paranoia that drove this case. It is clear that the husband was simply doing minor work and helping out.
The husband said he had not done any other work since he retired. He said he was 60 years old and broken. He said it was hard to get work with his qualifications and injuries. He had made no attempt to obtain work because he was occupied with this case. He proposed to try for work when the case was over.
The husband was cross‑examined about alleged counts of sexual harassment raised against him when he was in the (employer omitted). He denied this and said he was charged with prejudicial conduct. It arose from interaction with female (occupations omitted). He was fined $2000 and had a reduction in seniority.
The husband was asked if he received a pension for life of $800 per week indexed by reference to the CPI. He denied this and said he obtained two pensions. There is a (omitted) pension from the (omitted) Super of $1040 per fortnight. He also gets a (omitted) pension per fortnight of around $420, which may go up. This latter is tax‑free.
There are three components to his superannuation, being his contributions, employer contributions and excess contributions. He cannot touch his employer superannuation. The $1040 per fortnight is taxed down to about $900 per fortnight.
The husband was taken to a report of Dr H, an orthopaedic surgeon, dated 30 November 2016. This was for (omitted), where the husband was making a claim about his shoulders and back. This had been finalised and had increased his pension. It led to a $71 per fortnight rise. He obtains a gold card which gives him health services for life. He has no present pending claims against the (employer omitted) but will apply if something further breaks down. He returned to work after the Dr H report.
When taken to the report of Ms N, occupational therapist, the husband said that she had told him he could be a bus driver or do clerical work. This was prior to his two shoulder operations. He has not sought a further report mainly because of the Dr H report. He moved to (omitted) when he was with the (employer omitted) and Ms N was in Brisbane.
He was suspended with pay when facing (omitted) charges. He said his partner helped him out as he had no way to live. He did odd jobs on the house, such as putting in a footpath and making a small timber deck at the front. He first met Ms T in about 2009. She is 42 or 43 and earns about $80,000. This latter figure was just a guess. They have been friends since 2009 but in a relationship since 2013 after the husband separated from the wife.
Ms T would hold his money since 2010. He transferred money to her. The wife had no idea until 2010. Some of the amounts were $1000; some were $200. A $50,000 transfer to Ms T was post‑separation. Ms T had been his banker since 2010 and paid all the bills. The husband said, “she is my financial conscience.” She provided him money for social functions. She is in the (employer omitted) at (omitted). They met at (omitted). They were not in a relationship. In 2013, as the husband put it, “We hit it off.” They moved in together. He was suspended from (employer omitted) at the time and moved in with Ms T in about (omitted) 2013 as he could no longer stay on (omitted). They became intimate, sexually, at about (omitted) 2013.
The husband confirmed that he commenced his relationship with the wife in 1984 and they married in 1985. Their one child, Ms E, is now 30, and she lives with the wife in the former matrimonial home in Property A. He has had minimal contact with his daughter over the last five years, although there has been some telephone contact and some contact at (omitted), where she works. He had seen her about four times since 2013. He had (employment omitted) all over Australia, and he was away, and the wife chose not to follow him.
When it was put to him that he was substantially away from the matrimonial home through the 2000s, he agreed. He came home for Easter and the long weekends and for a month at Christmas. He obtained six to seven weeks, roughly, of annual leave.
When it was put to him that the wife said the relationship was over in 1993, he said this was a fairly tale; “the wife makes these things up”. It was not true that he had another relationship in 1993. He said they sometimes slept in separate rooms, but it was a queen‑size bed. Their daughter was in bed with them until she was 11 or 12. With this, and with cats as well, it was crowded in the bed, so he spent a lot of time in the back room.
He had, until 2013, when he told the (employer omitted) he was divorced, obtained extra conditions because he was conducting his service separated from his wife. He lost free flights and other conditions when he told the (employer omitted) he was divorced. He discussed separation with the wife in December 2012 and told the (employer omitted) of this when the divorce application was filed in May 2013. He then said he had notified the (employer omitted) in December 2012 but notified the (employer omitted) of his court proceeding in May 2013. He told his boss he joined the divorced men’s club. He filled out the relevant notification form for the (employer omitted) in about May 2013. Allowances went into the parties’ joint account until they were ceased.

When it was put to him that the wife had had nothing to do with him socially or sexually after 1993, he denied this and said it was a fairy story. He pointed to a one‑month trip to (country omitted) and the (country omitted) in 1997 and a 40^th birthday in (country omitted). The wife had even come to his own mother’s funeral, and they had had Christmas lunch together in 2012.
The husband said the wife was an absolute gun, being a wizard at finances. She was really good at it. He said he was not good at budgeting. He put all his money into the joint bank account. Normal budgeting ceased in approximately July 2013. He was only given about $500 - $700 per fortnight by the wife. He did, however, get allowances if he went on courses, and he spent that money. This commenced in about 2005 because the wife left him too little. He denied that he had placed these funds into a secret account and said it was mentioned in his material.
He said he did not know what was going on for the last 17 years and wanted to know what money the wife had spent in the last seven years. He had not obtained a forensic report because he had been quoted $30,000 to $40,000. He said he thought the wife was hiding money and that it looked like things did not add up. He had subpoenaed his daughter’s accounts and the wife’s sister’s.
He only had one account to which the wife did not have access. He now had three savings accounts and one credit account. He gave details of the funds in these accounts, which were minimal apart from $6000 in his (omitted) bank account, which was his main bank account. His income from the last year was $241,736, and he still had approximately $200,000 from the sale of the property. He had not got the money yet (this is the funds held in trust).
When he was discharged from the (employer omitted), he received a payout of some $7,000 to $8,000 composed of annual leave and long service leave. He received a (omitted) Super payout which was actually about $50,000. He had a (omitted) Super payout of $30,000 to $40,000. All of this should be in the (omitted) bank account. He said that he had not been asked for his expenditure post‑separation.
He denied that the wife had made all payments for the two mortgages since 2013. He said he put money in until May 2013. All his pay had gone to the wife. Until July 2014, he contributed $550 per fortnight but then stopped payments because he was suspended from the (employer omitted) in May 2014. He said share dividends and (omitted) sales had continued until today.
The husband confirmed that the Property A property had been bought in 2006 and that the wife and her daughter lived there. He said the daughter lived out for some six to eight months and that he stayed for six to seven weeks a year. Cross‑examination about the Property A property’s value is no longer relevant as it has been agreed.
The husband agreed that the 16 acres of land in Property B had been bought in 1998. He said there were already (livestock omitted) in the parties’ possession before that. The loans on the Property A and other property had been consolidated, and he agreed that he has signed documents. He said the property at Property B had been bought outright, but then a loan had been taken on it for approximately $246,000, which eventually increased to $250,000. These were interest‑only loans. The Property A loan had been increased by $60,000 in 2015 as a part property settlement, and the loan was, therefore, now $604,000. He agreed that the Property B property had been sold, and the balance of some $407,000 was in the pool. He had used the $60,000 part property settlement to pay out credit cards, and it was not for gambling.
The husband said that he did gamble. He buys tickets. He has been to the pokies a couple of times. He has been to (country omitted) a couple of times. He denied having a gambling problem but said he sometimes gambled a few hundred dollars. He has played the pokies for the last 17 years, once a month and sometimes a couple of times.
The husband agreed that the (omitted) shares bought in 1993 were now worth $3079 and the (omitted) shares $4685.
The (livestock omitted) valuation of $21,312 was the husband’s, and he said that they had doubled in value in the last 12 months. This latter remark was made with emphasis.
The husband agreed that the farm equipment should be sold, with the proceeds split between the parties (this is an agreed position).
The husband said he knew that the wife had received bonus shares with (omitted) Bank. She had bought shares for $6.60 but did not know how many. He said he was not the banker, and a lot of these matters had not been disclosed properly by the wife.
The husband agreed that his superannuation from the (omitted) super fund was $482,000. He was discharged on (omitted) 2016, and his pension was backdated in May. He obtained about $50,000 from superannuation payments, and these were his own contributions. He said “You have the paperwork.” He was happy to transfer the shares held on trust for his daughter to his daughter.
The father was cross‑examined about diverting money to Ms T. He denied doing so. He said he paid his inheritance from his father to Ms T by diverting one cheque. He conceded that he received $11,138 in respect to his long service leave and the like, together with an additional $3871, both in November 2016. He had also earned $2187 working for the (omitted). He had received $47,259 from (omitted) Super on 6 March 2017 and a further $7948 on 16 March 2017. He also was paid the sum of $10,712 by the (omitted) on 6 June 2017, which was moneys arising from a claim made prior to discharge. His pension is $900 per fortnight.
The father was further cross‑examined in detail about payments from Ms T and from the (omitted). He said that Ms T paid him a lot of $1000 or $2000 payments in the last few years. He said that this was his money that she was giving back to him.
I would interpolate to make it clear that Ms T has been the husband’s banker, in effect, for some years.
The husband had put his superannuation, (omitted) and final payout to Ms T. He said he had received $5000 here and $10,000 there back and now owed her money. This was not much, being some $3,000 to $4,000.
When questioned about his inheritance received in July 2012, the husband said this was received in two lots. One was $4000, and then when the property was sold, approximately $55,000. He did not put the $4000 into the parties’ joint account. He directed $50,320 to Ms T.
It was put to him that Ms T had paid $54,312 to a building company on 23 August 2016 to commence building a property in which she now lives. He replied that he did not know what Ms T did with it. He conceded he was in a relationship with Ms T after the house was built. He said he did not care what she did with the money so long as he gets it back. He moved in with her when he was discharged from the (employer omitted) but has his own place now where he lives. Ms T’s address is (omitted), and it was put to him that he had used that address for a number of purposes, including a loan application in January 2006 and Dr H’s report in November 2006.
He agreed and said 99 per cent of his mail went to (omitted). His rental property is not permanent, so it is more convenient to use (omitted). When it was put to him that this is his address on his tax return, he said that he lives at (omitted). He said he does not spend much time at his house and spent more time at his girlfriend’s than his own home. Utility bills are on bank statements. He says he helps Ms T. “It is boyfriend‑girlfriend stuff.” He said he cooks for her, and she cooks for him. Both sleep over. He was unaware of the value of the house, (omitted).
The husband conceded that he was aware of the wife’s inheritance in 2007 and, indeed, went to the grandmother’s funeral. When it was put to him that the wife had given her quarter‑share to her sister because the sister had looked after her mother, the husband said that she never told him that at all. The sister did live with her parents and looked after them. He said he agreed to the quarter‑share going to the sister. Then, however, in 2016, the transfer of the share took place. This property was part of the wife’s non‑disclosure.
The husband was cross‑examined about his legal fees and confirmed that he had probably paid $150,000 since 2013 when the proceeding commenced.
The husband has had two trips to (country omitted), one in 2013. He did not know that Ms T was going there till he met her there. He had been to (country omitted), gambling. He denied the sum of $35,000 in tax debts, said that he owed $48,000 capital gains tax on the property that had been sold. He denied that the large number of small cash withdrawals in his accounts was for gambling but said these were for normal purposes. An answer he gave about two joint accounts was, I regret to say, unintelligible.
He agreed that his (omitted) Bank account started in about 1983. He denied that he was the only one who had had access to it. He agreed that the account was put in joint names in 2000. He said he was only one who could withdraw cash but that the wife had access even though she was not legally entitled to it.
I should interpolate that this answer was redolent of the distrust and even paranoia that so marked this case. What he was asking the Court to accept was that the wife, in some unspecified way, using her skills as a (occupation omitted), had had access to his (omitted) account before 2000. I should make it clear that I do not accept that.
The husband said that the wife had had lots of accounts and that he signed documents every time he went home. His salary had been deposited into the (omitted) account until 2014. He conceded that the (omitted) account established in 1985 was a joint account and that the wife’s salary went in there. When it was put to him that he had access to (omitted), he denied it. He said, “I may have had access, but I never took money from that account.” He was happy for the wife to run the finances.
When it was put to him that (omitted) was used to pay credit card debts and withdraw cash, he said he would take cash out. When it was put to him that the wife said she never took out any cash from the (omitted) account, he said he did not know how much cash was taken out. He said his account became joint in 2000, but he was unaware if the mother had a card for that account, but she could access it. He said he did not know if all the cash withdrawals were by him. He said he withdrew all the cash in his (omitted) bank account as well. He again denied ever withdrawing cash from account number (omitted).
When it was put to him again that the wife accessed income from the (omitted) account electronically to pay bills, he said that she had taken the majority of the money out of that account to pay bills. He denied that the parties lived separately. He said that the wife monitored him by taking out money to pay bills. She did not know about his (omitted) account, and she did not know about Ms T from 2010 onwards. He had no idea how much cash he had withdrawn.
When it was put to him that things changed in 2007 when he commenced a relationship with Ms T, there was no real answer. He said that from 2010, he took $400 - $500 per fortnight in cash out of his account. He identified his (omitted) account records, which became exhibit R1, and his (omitted) credit records, which became exhibit R2.
In re‑examination, the husband confirmed that account (omitted) became a joint account in 2000. He said he would take out $500 - $700 per fortnight, and the rest was spent on joint bills.
He said, again, that he never withdrew anything from account (omitted), which was the wife’s main salary account. He said he owned nothing of Ms T’s house. Ms T was there as a financial stopgap. He said he would give her money so that he didn’t spend it.

The Evidence of the Wife In‑Chief

Prior to the wife being called, the records of the account number (omitted) were tendered as exhibit R3.

Submissions Made by Counsel for the Mother

Counsel, in her opening address, said that the mother asserted the marriage ended in 1993 because the husband had been cheating. She took off her ring. They socialised separately and did not have intimate relationships thereafter. They did, however, have property. Property was purchased in 2006 in joint names. Indeed, the husband was put on title. There were two accounts. (omitted) was the husband’s salary, and (omitted) was the wife’s salary. She had to withdraw funds from (omitted). She also made transfers to the husband’s credit card and paid all the bills. She looked after her daughter. The husband had not worked in the late 1990s and had been away from 2000. He would come back at Easter and Christmas to see his daughter. The wife did not know about Ms T.
The wife’s income was not that high until after separation. Neither party can now say how money was spent. Moneys were spent on gambling. The wife denied wastage, and there is no money hidden. The property in existence in 2012 is still there. Shares received post‑separation have been spent on legal fees. The wife had paid the mortgages after 2014. She sought an equal split of property (including the $60,000 partial settlement in 2016). The wife said that she had paid $120,000 into super since 2012 and sought that each party retain their own.

The Wife in Evidence-in-Chief

The wife is a (occupation omitted) and lives in the former matrimonial home in Property A. She adopted her affidavits and Financial Statement. She agreed that the chattels in the shed should be sold.
The wife was taken to paragraph 6 of the husband’s affidavit sworn 12 October 2017 which details alleged summaries of cash withdrawals. She said that some of the cash withdrawals from the credit card were correct but some were not. She said she paid the amounts back into the account but not always the exact amount.
The wife was taken to the alleged withdrawals from account (omitted). She said this was a joint account and her salary was placed into it. Not all the withdrawals were by her. Some in November 2007 took place when she was overseas. She was not in Melbourne between 7 October 2007 and 5 November 2007. There were a number of transactions during this time. There were six transactions at least at $100. She tendered, as exhibit R4, an itinerary and plane tickets which tend to support her assertions as to overseas travel. She said the other transactions she could not say for certain whether they were true or false.
Exhibit R5 shows a number of withdrawals including withdrawals from $100 made from account number (omitted) in the October period that the wife was overseas including withdrawals from (omitted) and, more particularly, the place identified as (omitted). The wife also referred to other withdrawals from (omitted) including, on 14 January 2002 at (omitted) in the Northern Territory, and others from (omitted) in January 2004 where she has never been. Exhibit R6 was tendered and it is clear that this supports the wife’s assertion as it does indeed show withdrawals from places where the wife says she has never been.
When taken to the husband’s affidavit filed on 20 October 2017 the wife said the figures were incorrect. She said the total of $7,000 correctly added up was $3,000 and she asserted that the documentation had not included all the credit card payments she had made.

The Wife Under Cross-Examination

The wife confirmed that she works for (employer omitted) which is a (omitted). It is a public company that employs about 55 staff. She has an employment contract. She possesses approximately $150,000 worth of (omitted) shares and has a loan from (omitted) for the same amount. She had not provided documentation relating to this because she had not been asked for it. She had not been asked for the loan agreement. It was part of what happened when she started at (employer omitted). She bought the shares and the loan comes with the shares. There is no interest payable for the first three years. These were not farmed in but were purchased. The major shareholder was Mr G, her Chief Executive Officer. She did not know how many shareholders there were.
She had inherited one quarter share of her mother’s house in approximately 2010. She never had any intention to keep that property. She conceded that she had signed three Financial Statements under oath. She had instructed her solicitor to transfer the property in 2010. She went on title as executor but the property was later transferred to her sister. This was not done until 2014 but she had believed it was done when the estate was finalised in 2010. She was confronted with a water licence in her name but said that this was her sister Ms R’s. It was not left to her and she was quite sure this was so. The will did not mention the water licence. She was not the registered owner of the water licence.
It is clear from exhibit A1 that the wife is indeed the registered owner of the water rights but I will return to this aspect of the matter when I deal with credit.
The wife was cross examined about the end of the relationship. She said that the husband had an adulterous affair in 2003. She had heard the husband say this. It was not true that she had made this up. She said “His mother told me on Christmas Day 1993.” She had never seen the water title search before and the spelling of her name on it was incorrect (exhibit A1).
The wife said that there were no other assets that were undisclosed. (omitted) is where the property is and she had told the husband’s solicitors this in the Notice to Admit. She originally told the solicitor that she wanted to transfer her 25 per cent to her sister Ms R.
The wife conceded that in a solicitor’s letter sent in 2012, she had described the marriage as a long marriage. When it was put to her that she had told her daughter that she separated in December 2012, the wife said it was not a true marriage from 2003. They did things together with their daughter. She did not agree separation was at Christmas 2012. She did not go to her lawyer until April 2013. She was (occupation omitted) at (employer omitted), not at the top of the tree. Her annual salary was $165,000 plus bonus, not $200,000 - $300,000 all the time. She did earn more than $300,000 in a recent year. She did not serve the husband with any paperwork before 2013. She said they lived their own lives and said that they were married “to all intents and purposes” till 2012. They did not support each other.
When it was put to her that the husband took three years off work to help, she said this arose out of a previous charge. It was put to her that she had deliberately sought to inflame matters by having her daughter attend the first day of hearing but she said that Ms E wished to come on her own account. She encouraged a relationship between the father and Ms E. She tells Ms E to respect the father as her father.
She repeated, under further cross-examination, that she did not believe she was married after 1993. When it was put to her that she had sought to minimise the husband’s contributions, the wife said that he never paid anything for Ms E. She wanted 12 months off work when Ms E was born but only obtained three because the husband had lost his job. Even during the two years he was out of the (employer omitted) he was in the (employment omitted). She did not agree that the husband had spent four years at home but did agree he was at (employer omitted) from 1992 to 1995. She could not remember whether the husband, during this period, returned for one weekend per month or once per quarter to be with Ms E. He did not do the washing or ironing or any of those jobs. Ms E was not struggling at school. She just required six months of extra-curricular assistance with maths.

The wife remembered the (omitted) property. It was bought in 1996 and the husband was on title because this was the only way to get an investment property. It was a rental property and always an investment property. The wife herself lived in a (employer omitted) property and was provided rent assistance.
The Property B property has 16.6 acres. The road verge is in (omitted). Property B was bought for $60,000 and sold for $675,000 netting a profit of $406,000 presently held on trust with the solicitors. It is not in an interest bearing account. The sale only settled at the end of May. When pressed as to why she had been so difficult about placing the money in an interest bearing account, the wife asked rhetorically why everything was brought back to her all the time. The interest would have been minimal in any event.
She could carry about (livestock omitted) on the Property B property. It depends on the acres. 15 acres is not that big for what a (livestock omitted) needs to eat. She had sold maybe eight (livestock omitted) at six months of age for two to $300 and this would not cover the rates. The (livestock omitted) had a sentimental attachment to her as they came from her uncle.
When it was put to her that the (omitted) withdrawals might have been made by Ms E, the wife said the daughter visited the father once but she never had access to the wife’s account. She did not know where (omitted) is. She agreed that (omitted) is relatively close to where she lives but she said she did not make withdrawals from (omitted). No one had another card and she had never lent her card to anyone.
The wife confirmed that loan (omitted) had always been fully drawn and was increased by $60,000 about a year ago as an interim distribution. It was put to her this was about December 2015. It was also put to her that her counsel had said that the (omitted) shares were in an employee share fund and could not be sold. The wife confirmed that this was so. The shares were held in a fund and could be transferred at a later date. The husband needed to sign a form and provide his income. This was to do with compliance matters with the bank. The loan application had to be done and needed his signature. It was not her who approved the loan. It was put to her that she had drawn the loan in February 2016 and the wife agreed and said the husband got the money.
The wife conceded that her shares were sold as detailed in her Financial Statement dated 2 May 2016 for $93,585. The time had come when she could sell them. She had not made it hard for the husband. He had not asked previously. She did not get a (omitted) share bonus every year. $1,000 of shares is provided to every staff member if they meet their goals. She did not get shares every year. She has undertaken community work at (omitted). She does about eight to 10 hours of such work per month.
Her salary is now $100,000 per annum. She was tired of working long hours at (employer omitted). She had already been volunteering for 16 hours when she changed jobs.
Ms E lives with the wife. She has an investment property but it is too far away and she rents it out. Ms E bought this in 2012 for $90,000 and built a property on it. The wife had discussed the building of the property with her daughter and the daughter obtained a loan from (omitted) Bank for it.
When it was put to her that the husband had re-partnered with Ms T, the wife agreed. He had referred to a partner in an affidavit in 2015. She had tried to subpoena Ms T for the last trial. She denied that she was unwilling to provide evidence to the husband.
The wife denied abstracting $1 million. When it was put to her that $1.6 million had been put into account (omitted) as a combination of the husband’s salary and her own she denied this. She said she had left $1,000 to $1,200 for the husband. When she was taxed with the withdrawals in the sums of $200 to $400 to a total of $1,040,000, the wife said that she had not taken all the funds. This was from 17 years’ worth of statements. She did not know that she had to disclose that she had moved from (omitted) to (omitted). She said she had supplied documents about the shares.
Following the luncheon adjournment, the wife confirmed that the letter of offer from (employer omitted) was the contract.
The wife asserted that the husband’s account was never transferred into 2861. That account paid credit cards and bills. She confirmed her assertions as to the amounts of money spent by the husband at paragraph 75 of her affidavit filed 10 October 2017. She said (omitted) had been a joint account since 2000. It was opened prior to the marriage. The wife said the column not accounted for taken from the husband’s tax returns. Then there was his own use and she added this to the not accounted for. This amount did not include the husband’s (employment omitted) income. She conceded that, averaged over seven years, the $30,000 would amount to $600 a week.
When it was put to her that $152,000 was allocatable to her, she said this was for credit card bills and for things that the husband used as well.
The wife confirmed that she had not included the value of her shares with (omitted) in her earnings at paragraph 78 of her affidavit. She conceded that the (employer omitted) provided a car and telephone and that she had paid her tax. She agreed that $544,000 had been paid for the Property A property between 2007 and 2015. Detailed cross-examination followed on the various bank interest figures but, in my view, they did not take the matter much further. She conceded that with an average interest rate of 7 per cent, the total payable on the $800,000 of debt per annum was $56,000 amounting over seven years to $392,000. It was put to her that this left a total of $578,000 between 2007 and 2013 and the wife said that this was about $80,000 per annum.
There was detailed cross-examination about the purchase and sale of properties from time to time. In my view, these are of no great moment given the ultimate outcome.
The wife denied that she had abstracted large amounts in credit card withdrawals of $200 to $400. She said she had to pay the credit card back. She would have no assets otherwise. She had not wasted funds. She said she had lived. She has had Property A solely since 2013. She has taken the sale proceeds of her (omitted) shares. She had borrowed funds from (omitted) but did not know the name of the body that loaned the funds to her. She did not get a pre-filing report for her own tax. The husband made no deposits into account (omitted).
When it was put to her that she had transferred moneys to credit cards, the wife said that she had paid and had paid also in cash. Older statements which say cash could only be cash. Now they can be transfer. She had only ever used Australian currency. She said if the husband had ever asked for money he could get it.
The wife did not accept that the $42,930, referred to in paragraph 131 of her affidavit, was the true total of the husband’s gaming expenditure. While that total if divided by the number of years would amount to about $6000 worth of expenditure per year, many other withdrawals were made near gaming venues.
The wife confirmed that she is paid a salary at (employer omitted) and she does not get trail benefits. The company is two years old. She did, however, receive $300,000 in earnings in the 2015 tax year, possibly $177,000 in 2016 and an estimate of $279,136 for 2017. She has not included the gain from the sale of Property B property in her 2017 tax return. She thinks the capital gains tax would be $65,000. She has spent all her income and has no investments apart from (omitted) shares.
So far as the (omitted) shares are concerned her daughter gets her dividends. The other (omitted) shares were an investment dividend and would have been $120 each six months. She did not look at all the accounts in the Notices to Admit before answering. She said she used cash for living and holidays and normal things people do. She denied having a gambling problem. She had no problems with alcohol or drugs. She does not have 17 years’ worth of receipts and did not pay her living expenses by credit card. Some things were paid in cash. She bought hay and paid the farmers in cash. She goes to a trainer. She has a cleaner. She has a gardener every month. She spent cash on holidays. She did normal things in cash. She had received a Notice to Produce the previous weekend but was not able to do what was required. She had not seen a letter of 16 May 2017 which became A4.
I should interpolate at this point and say that the witness had already been deeply distressed and required an adjournment to enable her to continue. By this stage it was obvious that the witness was extremely fatigued and distressed and it was equally clear that the questions were eliciting answers of diminishing value. I gave counsel 10 minutes further in cross-examination as a result.
The wife was then cross-examined about the question as to whether early matters recorded as cash could have been transferred in earlier bank accounts. It is clear from exhibits A6 and A 7 that transfers by internet transfer took place earlier than the witness had first said.
The wife said her evidence about cash were not based on bank records.
In Re-Examination the wife confirmed that she did not know what account moneys were held in. She confirmed that she had received bonus (omitted) shares.

The Evidence of Mr G

Mr G confirmed that he was a public accountant. He adopted his affidavit as true and correct.
Mr G confirmed that he could not give an exact valuation for the wife’s superannuation because it depended upon the market. He said he services about 10 other superannuation accounts and also audits super funds. He was not aware of the requirements for court experts. 55 is the retirement date where you can start. You can retire on a full pension when 60. He is awaiting documents to enable him to complete the wife’s tax return in 2017, but requires additional information. He is aware of tax agent pre-filings which are normally done for interview. There are often mistakes. It can take five to 10 minutes to call up a pre-file.
He noted that (omitted) shares were $35,000. This is all the shares. The super fund paid $35,000. He was not aware of the market value of the shares. In re-examination he confirmed he was not aware of other (omitted) shares.
The pre-filing report was tendered as exhibit A8 and the Court was informed by counsel for the husband that the Property A property was to be allotted a value of $1,020,000.

Some observations about the credit of the witnesses

Both these witnesses rather called to mind the example of the Curate’s egg. In some parts they were good and in some parts much less so. I had the opportunity to observe the two primary witnesses in the witness box for extended periods of time. There were both skilfully and closely cross-examined. Both generally held up fairly well under cross-examination. For all of his denials of knowledge or involvement in the parties’ financial affairs, I formed the clear impression from what the husband said and the way that he said it that he was far more financially attuned and aware than he wished the Court to believe. His command of some of the figures was striking. I noted in particular his insistence that the value of (livestock omitted) had gone through the roof. Given that the total value allotted to the (livestock omitted) on his figures was only just over $20,000, in a pool which cumulatively is over two and a half million, it was clear to me that he was keen to prove his point that the wife had, in effect, stolen huge amounts of money from him.
Both witnesses agreed that the shares held on trust for the daughter should be transferred and that the farm equipment should be sold with the proceeds split equally.
I found the insistence upon detailed cross-examination of the wife about the transfer of the quarter share in her own mother’s home to her sister to be particularly unnecessary. This was so because the husband himself conceded that this was always the intention. Rather, it was the sinister (as he saw it) non-disclosure that concerned him. There was in the husband’s evidence generally an angry supposition that he had been done down by the wife’s devious non-disclosure and financial manipulation. His anger at this was clear and at times, his view of the wife verged almost towards paranoia. I refer in particular to his assertion that the wife had the capacity to access his account (omitted) before it was a joint account, even though it was clear there was no capacity on her part to do so.
The wife likewise generally stood up fairly well in cross-examination. As earlier indicated, at one point she became deeply distressed and the Court had to adjourn. I formed the general view that she was an honest witness but somewhat combative. Her evidence about the disclosure to her of the husband’s infidelity by the husband’s wife was all too obviously true, so was the bitterness related to it.
The wife on occasion refused to admit she was incorrect about matters that plainly were incorrect. Her bloody-mindedness in refusing to allow the $400,000 also held in trust to be placed in an interest-bearing account was striking. She was, in my view, at times overly keen to volunteer answers that she perceived to be to her benefit. She was in the habit of answering questions with non-responsive questions of her own.
The wife’s evidence that she had not revealed things because she did not think she was required to, such as her new employment with (omitted), was, in my view, surprising. The parties have been spending enormous and inappropriate amounts of money arguing about discovery throughout this proceeding. As an intelligent woman she must have known what her duty to disclose was. I formed the clear impression that while she has undoubtedly provided very substantial disclosure, she has at times simply been overborne by the scale and scope of the proceedings. This is scarcely surprising given the prolix and, in my view, totally inappropriate Notices to Admit.

Findings about the salient facts

Although it is not the way in which I normally approach a judgment in a property matter, it is now appropriate to set out what I think about the major disputes between the parties.
In dealing with the facts of this matter, I propose to paint with a relatively broad brush. I do not propose to replicate the, in my view, over-minute approach that the parties have adopted, because the underlying facts are to my mind clear.
The parties commenced cohabitation in (omitted) 1984 and married on (omitted) 1985. Their daughter, Ms E, followed on (omitted) 1987. The husband was employed as a (occupation omitted) and the wife as a (occupation omitted) at the time and their incomes remained pretty much the same until late in their relationship. The parties bought and sold a number of houses which, to my way of thinking, are unremarkable. It is not necessary to set out the successive purchases and sales. The parties did fairly well.
The husband joined the (employer omitted) in 1989, although it would appear he was in the (omitted) before that. Thereafter, and inevitably, he moved around Australia from time to time. The wife and Ms E did not go with him because the wife had a job which provided a rental assistance, at least in part. The father remained in the (employment omitted) until (omitted) 1997 and it would seem more probable than otherwise that his assertions as to a payout in the sum of roughly $15,000 to $20,000, in respect of which he was not cross-examined, is correct. While this accrual of money, committed as I accept to the parties’ joint benefit, must have been of assistance, it is not of any great moment after so long a time.
The parties had commenced their relationship in 1983 and bought their first property together shortly thereafter at (omitted). Whether the husband, as he says, resigned from the (employer omitted) to come home and assist with Ms E’s upbringing or whether he did so as a result of disciplinary charges is, to my way of thinking, unimportant. He spent a period of time at home and must have assisted to some extent in the domestic duties in a general way. The extent to which he did so once again in my view, while like so many things in this case the subject of dispute, does not really matter much.
In (omitted) 1990, the husband went back into the (employer omitted) and had a period of service in (country omitted) thereafter. His income was tax-free, but whatever happened to it it is now long gone. I will return to that matter when I deal with the question of wastage by the parties. The husband returned to Darwin in (omitted) 2002 and thereafter had a posting in Sydney in 2005. It appears that in 2007, he was posted to Melbourne.
While the husband was posted at points far from where the wife and Ms E were living, he returned far less frequently. It seems to be common cause that he returned for about a month at Christmas and on other occasions throughout the year. When he was based in Melbourne or (omitted), I think he probably returned slightly more.
In 1993 the wife, as I accept, was told on Christmas Day by the husband’s mother that the husband had had an affair. I accept that she thereafter removed her wedding ring and told the husband that the marriage was at an end. I further accept, having seen her evidence, that she never had any sexual intimacy with the husband thereafter and in a general sense, the consortium of marriage was at an end.
Curiously, however - that is what makes this case so unusual - that was not the end of the relationship in a complete sense. The parties continued to conduct their finances as a family unit thereafter until final separation in late 2012 or early 2013.
The husband had his (omitted) account and the wife had her (omitted) account. The (omitted) account was made a joint account in 2000. I accept the wife’s assertion that she did not have access to that account beforehand. As earlier indicated, the husband’s fanciful assertions that in some unlawful way she had access to this account because she was a (occupation omitted) are simply not accepted.
It is also clear that contrary to his denials the husband did have access to the (omitted) account, which was, in any event, a joint account. So much is clear from the withdrawals, if nowhere else, in October 2007, when the wife was in the (country omitted) (see exhibit R4). Exhibit R5 shows the account being accessed on a numerous amount of times while she was overseas. It is noteworthy that a number of these withdrawals were from the otherwise unidentified place called (omitted). They can only have been withdrawn by the husband, like the withdrawals, for example, at (omitted) in exhibit R6.
Given that, contrary to his denials, the husband not only did have access to the joint account (omitted) but, indeed, accessed it, the entire methodology of his claim is shown to be false in my opinion.
Once this bridge is crossed, the case can be seen in what in my opinion is its true light. The wife did, quite clearly, handle the parties’ finances and was the moving force in the purchase of most, if not all, of the properties that the parties bought. There is no doubt that the husband is correct in his description of his own circumstances. His pay went into the (omitted) account which the wife accessed and she left him what, in effect, were living expenses. The husband’s evidence about this point was given with evident sincerity and I accept it. I also accept that he started over time to accrue moneys into an account which he was aware the wife did not know about, namely, his (omitted) bank account. The amounts thus accrued were not entirely negligible.
The husband, as I find, is an inveterate gambler. It is clear that from the numerous withdrawals in gaming places proved by the wife that this is so. That this is indeed the case is made all the clearer by the way in which the husband dealt with such funds as were clear in his hands. He gave his inheritance of some $50,000 to $60,000 to Ms T, in effect, to hold as his banker. From 2010 onwards, she fulfilled this role. This transfer of money to Ms T, who was not called as a witness by the husband, even though she is his partner, was plainly done because he did not trust himself with his own money. The inference is entirely clear that he gambled very substantial amounts. It is, of course, not possible to say exactly how much. Nonetheless, the wife’s fervent assertion that, in effect, the Court should regard his expenditure as entirely wasted is offset by the fact that she herself also spent very substantial sums of money.

The loans on the Property B property subsequently sold and on the Property A property eventually bought have been essentially interest only throughout. The reality is that the wife had very substantial amounts of money available to her, particularly in the latter years of the relationship.
As I find, however, the reality is that she has not siphoned these funds off into some other account to her benefit. She has simply spent it in living well. She describes having a gardener, a personal trainer and various other expenses which might be thought are relatively self-indulgent. I accept that she has simply spent the funds that have come her way save to the extent that they have been invested in shares or the like.
I should make it clear that I comprehensively reject the assertion that the husband’s gambling, significant as I find it to be, is in the scheme of these parties’ finances something that should give rise to a wastage adjustment. The figures are simply not precise enough to enable this to occur.
Similarly, I am not prepared to accept a wastage argument against the wife. It is clear that the husband has had liberal access to the (omitted) account as well as the wife. This being so, the lamentable schedules prepared by both parties with such endeavour (and cost, no doubt) over time are really of no assistance to the Court whatever. The evidence simply does not rise to the point where it is possible to say more than that both these parties have been less than wholly prudent with the funds that have accrued to them from time to time.
It should be noted that the wife’s income, which became extremely significant in the latter years of the relationship, has not given rise to significant gain.
Furthermore, I should make it clear that I completely reject the assertion that the wife’s failure to disclose the transfer of her inheritance to her sister should, as it were, give rise to a finding that she has been conniving and dishonest in her behaviour about discovery. It is quite clear having seen her give her evidence that she genuinely believed that the property had been transferred in 2010. As I find, she was unaware of her ownership on title as to the water rights until she was confronted by it in Court.
Both these parties have all too much to say about disclosure and discovery and, in my view, they have both been less than wholly compliant. Nonetheless, as is often the case in these discovery cases, they have produced enormous amounts of documentation. The oversight and failure to provide some extra pieces, which continued right up to the hearing itself, does not, in my view, give rise to a presumption that they have done so deliberately to advance their case.
The only conclusion that makes any sense about the duration of the relationship is that from 1993 onwards the parties lived in a very curious relationship. Their own interpersonal dealings were unpleasant and spiky at best and they were never intimate thereafter. Nonetheless, it clearly suited both of them to have things continue as they were. From the wife’s point of view she obtained extra funds with which to live. From the husband’s point of view, he had a base to go to when he was not in (employer omitted) accommodation and would lose money if the (employer omitted) knew he was separated. He also got to see his daughter from time to time. Whatever the state of his relationship with her now, and it appears to be somewhat strained, there is no reason to doubt that it was strong while the child was growing up. Both these parties are, in my opinion, very money conscious, despite their lack of frugality, and putting it bluntly they both saw sufficient benefit in the arrangement as it was to continue it until final separation.
That separation, obviously, owed much to the emergence on the scene of Ms T. The husband appears to have moved in with her, having nowhere else to go, when he faced his most recent disciplinary charge in the (employer omitted). Notwithstanding the wife’s doubts about the matter, I am prepared to accept the husband’s version of the development of that relationship. They were friends and she was his banker from 2010 onwards. They ultimately became intimate in 2013. They are still in a relationship. The husband’s penchant for slightly strange relationships continues. While Ms T may well have applied the husband’s inheritance to the building and/or purchase of her current home, I accept that she has repaid the husband over time. He may well have some claim to an interest in Ms T’s home, but it is not possible to quantify. He might well be in a position to argue that they have been in a de-facto relationship for some time.
As with his relationship with the wife, however, the husband has elected not to live with her full-time and puts himself to the additional expense of having his own rental property. He seems to have a penchant for relationships conducted at something of a distance.
The only other matter requiring comment at this stage is the wife’s sale of (omitted) shares. Some of these were sold post separation, in about May 2016 for $93,585. Otherwise, the evidence as to their possible sale is hard to follow. Although the (omitted) shares must have accrued to a large part during the pre 2013 period, in truth they owe nothing whatever to the marriage. As I have said the consortium of marriage was at an end in 2003. The shares are the wife’s reward for her work. They should be excluded from the pool.
Similarly, the husband’s long service leave and withdrawal from superannuation should not be included. They owe nothing to the marriage either.
It should be noted that I am not giving weight to the wife’s concessions under skilful cross-examination as to the scope of the pool. It is for the Court, not the wife, to determine issues.
The only other matter requiring comment at this stage is the wife’s sale of (omitted) shares.
This part of the judgment has proceeded in what I readily concede is something of a scattergun approach. I have endeavoured to deal with the various issues the parties have raised. Hopefully, I have disposed of all the relevant matters of controversy between them.

The Pool

With the findings I have set out above in mind, it seems to me that the pool available for division is as follows:
a)Property A house: $1,020,000;
b)Net proceeds from sale of land: $406,344;
c)(omitted) shares: $11,754;
d)(omitted) shares: $8,219;
e)(omitted) Holden: $2,000;
f)Wife’s car: $30,000;
g)(livestock omitted) (taken as a concession against interest from the wife’s Financial Statement): $21,312;
h)Addback: $60,000, previously distributed to the husband.
TOTAL: $1,559,629.
These are countered by liabilities as follows:
a)Mortgage (omitted) Bank: $604,000.
I do not propose to allot any value to the (omitted) shares because I accept the wife’s evidence that they are counterbalanced by a loan in the same amount. Her evidence was given with conviction and I accept it. I have not included the parties’ moneys in bank accounts as, in my view, they are clearly post-separation.
The parties also have superannuation as follows:
a)Husband’s superannuation: $482,912;
b)Wife’s super (omitted): $20,541;
c)Wife's (omitted) Super: $962,104.
Insofar as the husband seeks an addback of moneys in excess of $70,000 from the wife’s (omitted) superannuation, it seems to me that any such withdrawal should be dealt with in the same way as their superannuation more generally (see paragraphs 157-159). It should not be included in the pool.
Both parties have or will have Capital Gains Tax liability arising from the sale of land recently sold. It may impact differently given their different earnings. The respective liability should fall where it lies, as should any other outstanding tax liabilities.
I have not included the (omitted) shares in the total pool as at least a proportion is to be transferred to the daughter and the value of the shares is in any event trivial in the total pool.

Contribution

In this regard, I refer to my earlier findings of fact. Both these parties have contributed their wages to the common weal of their relationship until 2013. Both, as I find, have spent quite lavishly. In the husband’s case, it has been lavish in terms of his gambling and in the wife’s, her lifestyle more generally. While the wife’s more recent earnings have been substantially greater than the husband’s, the fact is that when looked at as a whole – and, in my view, it can only be assessed as from 1984 to 2013 because that is when the financial relationship came to an end – the parties’ contributions must be taken to be equal. True it is that the mother had the predominant expense of bringing up the child and must have had the greater part in the upbringing of the child, but taken overall both of these parties did the best they could. They, after all, lived together for the first five years of Ms E’s life and for a period later thereafter, however long it may have been.
Taking all relevant considerations into account, in my opinion, their contributions are equal. To the extent that the husband might be thought not to have contributed quite equally because he failed to earn quite as much and failed to provide as much in terms of household duties, I should make it clear that I regard the wife’s expenditure on herself, while not wastage, as diminishing in a sense her contribution to the overall outcome.
The various matters the parties have raised are not, contrary to the parties’ positions, susceptible in my view of arithmetical calculation. It is a matter of looking at the parties’ conduct overall and I have no hesitation in assessing their contributions as equal.

The Future Needs Factors

I accept that the husband’s work future is less rosy than that of the wife. He has various debilitating health difficulties and will find it at his age difficult to obtain work in the particular career he has had all his life. That is not the end of the matter, however, as he also has a tax-free pension and other benefits which will stand him in good stead, including particularly his gold pass.
Additionally, he has the benefit of his ongoing relationship with Ms T. This is not a fly-by-night relationship. It has now existed for some years. While, for reasons that escape me, the husband does not choose to live full-time in Ms T’s home, they plainly are in a committed full-time relationship. He has the benefit of mingling his finances with Ms T and may in the future have the benefit of either of cohabitation with her or, alternatively, a possible claim against her home. These matters are wholly incapable of any precise estimation and, indeed, are to an extent speculative, but they cannot and should not be wholly regarded as irrelevant.
By way of contrast, the wife has a higher income than the husband, even with the diminution at (employer omitted). I accept that the wife made a bona-fide decision to reduce her work hours and stress and is not open to criticism for doing so. What cannot be known, of course, is whether the shares in (omitted), which is a start-up company, as I understand it, will increase dramatically. Once again, it is a matter of speculation. One can, however, in my view, reasonably expect that the wife, whose health is unremarkable, is likely to continue to earn more than the husband and for a longer period of time.
The daughter, Ms E, lives with the wife but, in my view, this does not give rise to any particular adjustment. She does not apparently pay rent and it is not possible to make any finding as to whether or not this is something of sufficient moment to affect a final calibration of the parties’ future needs.
Once again, and doing the best one can, it seems to me that there should be an adjustment of some 5 per cent in the husband’s favour in respect to the parties’ property interests other than superannuation. As I say, his health is more precarious. His future earnings are not likely to be as great as the wife’s and he has less time in which to earn them.

Superannuation

This brings us to another very significant consideration. The wife has approximately twice as much superannuation as the husband.
Nonetheless, and in this case in my view, very much as a matter of contrast, the parties did not mingle their superannuation during their relationship. The wife assisted the husband to enter into the superannuation field before statutory contributions were created. Nonetheless, the parties very much seem to me to have kept their superannuation apart. Given the total lack of consortium after 1993, it is difficult to see how the wife’s superannuation, or for that matter the husband’s, owe anything to the contributions made by the other. Furthermore, although the evidence is by no means clear, it seems that the wife’s superannuation may have substantially increased in more recent times in accordance with her significant income increases.
In my view, it is not appropriate that there be a superannuation split at all. Rather, the fact that the wife has so much more superannuation than the husband is a matter referable back to the question of future needs. In my view, a disparity of 100 per cent between the parties makes it appropriate that there be a further 10 per cent adjustment in the property pool in favour of the husband.

Just and Equitable

In my view, bearing in mind the very unusual and extraordinary circumstances of this case, the non-superannuation assets should be divided 65 per cent in favour of the husband and 35 per cent in favour of the wife. Each party should retain their own superannuation. I have drawn orders to give effect to this conclusion.

I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 7 December 2017

Schedule of Calculations

$1,559,629
–– $604,000
$955,629
x 65 / $621,158
100

Husband receives:
$60,000 prior distribution
$203,172 half of funds in trust
$2,000 Holden (omitted)
Total: $265,172

$621,158
–– $265,172
$355,986 payable to the husband

[2017] FCCA 2871

7 December 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Constructive Trust

Costs

Remedies