Corelli & Beroni (No 3)

Case [2024] FedCFamC1F 327

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Corelli & Beroni (No 3) [2024] FedCFamC1F 327

File number(s): ADC 1771 of 2016
Judgment of: MEAD J
Date of judgment: 17 May 2024 
Catchwords: FAMILY LAW – PROPERTY – Application for property settlement – where there was a de facto relationship of almost seven years – where section 90SM and 90SF factors are considered - where there is an overwhelming imbalance between the parties’ financial positions at the commencement of the relationship - where assets owned by the respondent are significantly greater than that of the applicant – where the applicant seeks an alteration of the property interest– where the respondent seeks the application to be dismissed–where it is clear from the evidence of both parties that the husband intended to keep all of his property separate from the applicant throughout the relationship – where the applicant was dependent upon the respondent for her accommodation as she had no residence of her own in Australia – where at the time of the trial the respondent’s assets existed the same as they did at the commencement of the relationship – where the applicant acquired assets from the monthly allowances provided to her by the respondent during the relationship and by the respondent purchasing property and jewellery for her - consideration of approaching the matter by way of a “global approach” or an “asset by asset approach” – where it is common ground that during the relationship the applicant made no direct financial contribution to any of the assets held by the respondent –where the applicant’s homemaking vastly exceeded that of the respondent – consideration of the Kennon principles – where the court found the principles not applicable to the circumstances of this case – consideration of the applicant’s future needs determined by reference to section 90SF(3) – where it is unhelpful to attribute a percentage calculation to applicant’s non-financial contributions – where it is appropriate to affix an amount for her contribution entitlement and future needs – where it is just and equitable to make an order.
Legislation: Family Law Act 1975 (Cth) ss 79, 79(2), 79(4), 90B, 90J, 90SF(b)(r), 90SF(3), 90SF(3)(r), 90SM, 90SM(1), 90SM(3), 90SM(4), 90SM(4)(a)(i), 90SM(4)(a)(ii), 90SM(4)(e).
Cases cited:

AJO & GRO (2005) FLC 93-218

Beroni & Corelli (2021) FLC 94-004

Bevan & Bevan [2013] FamCAFC 116

Corelli & Beroni [2019] FamCA 911

Chancellor & McCoy [2016] FamCAFC 256

Cook & Langford (2008) FLC 93-374

Edgehill & Edgehill [2007] FamCA 1102

Fielding & Nichol [2014] FCWA 77

Kennon v Kennon (1997) FLC 92-757

Norbis & Norbis (1986) FLC 91-712

Rodgers & Rodgers [2016] FamCAFC 68

Stanford & Stanford [2012] HCA 52

Division: Division 1 First Instance
Number of paragraphs: 356
Date of hearing: 28, 29 & 31 March 2022, 4-6 April 2022, 17-18 May 2022 and 10 June 2022
Place: Adelaide
Counsel for the Applicant: Mr Whitington QC with Ms Doyle of Counsel
Solicitor for the Applicant: Angela Ferdinandy
Counsel for the Respondent: Ms Nelson QC with Mr Bullock…

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Corelli & Beroni (No 3) [2024] FedCFamC1F 327
Case
[2024] FedCFamC1F 327
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Corelli & Beroni (No 3) involved a dispute over the property settlement between Ms Corelli and Mr Beroni, who had been in a de facto relationship from February 2010 until December 2016. The primary legal issue was whether an alteration of the parties' property interests was just and equitable, as mandated by sections 90SM and 90SF of the Family Law Act 1975. The applicant sought an adjustment to her property interests, arguing that the substantial imbalance in their financial positions at the beginning of the relationship warranted a re-evaluation. The respondent, on the other hand, opposed any alteration, asserting that the existing property interests should remain unchanged.

The court examined the financial contributions and non-financial contributions of both parties to the relationship, considering the applicant's role in homemaking and child-rearing, and the respondent's significant financial assets. The court found that while the Kennon principles were not applicable, it was appropriate to use a global approach to determine the applicant's entitlement and future needs. The court held that attributing a percentage to the applicant's non-financial contributions was unhelpful, and instead, it was just and equitable to affix a specific amount for her contribution entitlement and future needs. Consequently, the court ordered the respondent to pay the applicant $4,000,000, considering it a fair and reasonable distribution of the assets at the time of the trial.

The final orders mandated that the respondent pay $4,000,000 to the applicant, with specific provisions for the retention of their respective properties, assets, and resources. Additionally, the court restrained the parties from transferring or disposing of any assets without the other's consent and ordered the sale of a specific property if the payment was not made within the stipulated timeframe. The orders also included provisions for indemnity and costs in case of default, ensuring compliance with the court's determination.

Orders

Orders of the court

ADC 1771 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CORELLI

Applicant

AND:

MR BERONI

Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

17 MAY 2024

THE COURT ORDERS THAT:

1. In full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:

(a) That on or before 28 June 2024 the respondent do pay to Angela Ferdinandy Pty Ltd Trust Account on account of the applicant the sum of $4,000,000 (FOUR MILLION DOLLARS).

(b) That in addition to the payment referred to in paragraph 1(a) hereof the applicant do retain for her sole use and benefit absolutely free of any claim by the respondent the following property, assets and resources, namely:

(i) Her savings;

(ii) Her investments;

(iii) Her motor vehicle;

(iv) Her furniture and effects;

(v) All real property in her possession;

(vi) Her superannuation and work entitlements;

(vii) Her life insurance;

(viii) All claims for compensation and damages;

(ix) Her choses in action; and

(x) All other assets in her possession or under her control.

(c) Upon compliance with the order contained in paragraph 1(a) hereof the respondent retain for his sole use and benefit absolutely free of any claim by the applicant the following property, assets and resources, namely:

(i) His interests in the following entities:

A. Beroni Share Trust;

B. Beroni Family Trust

C. V1 Pty Ltd ATF:

D. Beroni Property Trust;

E. Beroni (2) Family Trust;

F. Beroni (3) Family Trust;

G. BB Company;

H. V Pty Ltd;

I. W Pty Ltd;

J. V3 Pty Ltd;

K. V2 Pty Ltd;

L. HH Pty Ltd;

M. JJ Trust;

N. Beroni Super Fund; and

(ii) His savings;

(iii) His investments;

(iv) His motor vehicle;

(v) His furniture and effects;

(vi) All real property in his possession;

(vii) His superannuation and work entitlements;

(viii) His life insurance;

(ix) All claims for compensation or damages;

(x) His choses in action; and

(xi) All other assets in his possession or under his control.

(d) That subject to the provisions of this Order that each party do release the other party from any liability for any claim that either one may have against the other in respect of any property either not or hereafter owned by either of them.

(e) That the respondent indemnify the applicant in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debts or liabilities incurred in his sole name.

(f) That the applicant indemnify the respondent in relation to all actions, claims, proceedings and demands howsoever arising in relation to any debts or liabilities incurred in her sole name.

(g) That hereafter each party shall discharge without calling upon the other to contribute thereto their several debts contracted for and by them.

(h) Henceforth, each party is restrained and an injunction is hereby granted restraining the parties and each of them for pledging the credit of the other.

2. Pending compliance by the respondent with the order contained in paragraph 1(a) hereof the respondent be restrained and injunctions are hereby granted restraining him from transferring, assigning, disposing of or otherwise dealing with any asset or interest in his possession or power or control, other than to satisfy the terms of this Order.

3. That the applicant shall be at liberty to register a Caveat over the Suburb L property to secure the judgment sum provided that such Caveat shall be removed at the expense of the applicant upon payment of the judgment sum in full.

4. In default of payment of the judgment sum specified in paragraph 1(a) hereof:

(a) Interest shall be payable at the rate prescribed by the Federal Circuit and Family Court Rules (2021) ("the Rules") and if default should continue for a further seven (7) days then without limiting the entitlement of the applicant to invoke the Rules as to enforcement:

(b) The property situate at KK Street, Suburb L ("the Suburb L property") being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … and Register Book Volume … Folio … shall be forthwith placed upon the market for sale by public auction upon the following terms and conditions:

(i) That the Suburb L property be placed with an Agent and Auctioneer of the applicant’s choice (hereinafter called "the auctioneer") by auction at the earliest possible date;

(ii) That the respondent execute all documents requested by the Auctioneer for the sale of the Suburb L property;

(iii) That the respondent request the Auctioneer to recommend a reserve price to be placed on the Suburb L property for the purpose of the auction and sale and accept such recommended reserve price;

(iv) That the respondent pay to the Auctioneer any sum requested for advertising expense in relation to the auction;

(v) That the respondent give such instructions to LL Conveyancers, for the preparation of an appropriate contract and other documents as are necessary for the sale of the Suburb L property by auction;

(vi) That the respondent co-operate in every way with the Auctioneer in relation to the auction of the Suburb L property including making the key available and allowing inspection of the Suburb L property at times requested by the Auctioneer and ensuring that the Suburb L property is in a neat and clean condition at the time of inspection by prospective purchasers;

(vii) That the respondent attend at the auction sale and negotiate with the highest bidder in the event that the reserve price is not reached provided that the wife shall determine the sale price having regard to the recommendations of the Auctioneer;

(viii) That the respondent accept the advice of the Auctioneer as to the acceptance of a price less than the reserve price; and

(ix) That the respondent shall execute all other documents necessary to complete the sale.

(c) The respondent shall do all acts and things necessary to procure that on completion of the sale of the Suburb L property the proceeds of sale shall be paid in the following manner and priority:

(i) In payment of agent's commission and auction expenses due on the sale;

(ii) In payment of conveyancing costs of sale;

(iii) In payment of all registered mortgages and encumbrances and costs of sale;

(iv) In payment of the balance to Angela Ferdinandy Pty Ltd Trust Account on behalf of the applicant and in discharge of his obligations under this Order and if the balance is insufficient to discharge the respondent’s obligations under this Order then the interest of the respondent in the entities referred to in paragraphs 1(c)(i)(A)-(N) hereof shall be realised upon such terms and conditions as may be determined by the parties and in default of agreement as ordered by the court and the net proceeds of sale shall be applied:

A. Firstly, to discharge the respondent’s obligations under this Order; and

B. Secondly, to Griffins Lawyers Trust Account on behalf of the respondent.

5. That the order for spousal maintenance made herein on 13 October 2021 shall be discharged upon compliance by the respondent with the terms of paragraph 1(a) hereof.

6. In the event that either party shall fail and/or refuse to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose, then and in such case a Registrar or Deputy Registrar of this Honourable Court upon proof of Affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if in his opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly and the party in default shall pay the other party’s costs as agreed or taxed.

7. That if either party shall make default in the due compliance with any of the terms of this Order the party in default shall pay the costs of the other part reasonably incurred in relation to such default.

8. That the matter be certified fit for senior counsel.

9. That the application filed herein on 16 May 2016 (as amended on 5 December 2019) and the response thereto filed on 4 August 2016 be otherwise dismissed.

Liberty to apply as to consequential orders.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

On the applicant’s case the parties lived in a de facto relationship from February 2010, being the date stated in a Binding Financial Agreement signed by both parties dated 7 April 2011,[4] until December 2016.[5] On the respondent’s case the de facto relationship commenced in May 2010[6] and continued until April 2016.[7][4] Exhibit R20.[5] Applicant’s trial affidavit filed 28 February 2022, paragraph 515.[6] Respondent’s trial affidavit filed 29 March 2022, paragraph 75.[7] Respondent’s trial affidavit filed 29 March 2022, paragraph 122.BACKGROUND The matters to which I refer under this heading are factual matters that are not substantially in dispute between the parties, save as to the extent to which I specifically refer from time to time. The applicant Ms Corelli was born in Country G in 1967 and at the time the trial in this tranche of these proceedings commenced she was aged almost 55 years. She arrived in Australia in late 2009 under a visa, accompanied by her son Mr Y who at that time was aged not quite 16 years. Upon their arrival in Australia, they took up accommodation in Suburb MM. At the time of her arrival in Australia she had limited cash funds with her and apparently modest financial resources in Country G. I will refer to that matter later herein. She had married in Country G in 1987 and separated from her husband in November 2008, alleging that he had perpetrated serious domestic violence upon her and the children. The respondent Mr Beroni was born in 1932 and was aged 90 years at the commencement of trial. He migrated to Australia from Country K in 1952. He lived and worked in City YY between 1954 and 1978. In 1957 he married and in 1978 he, his then wife and their three children relocated to Adelaide. Following upon the separation between he and his then wife in the mid 1990’s they were engaged in acrimonious property settlement proceedings between 1996 and 1998 when their matter was finalised. At the time of those proceedings he and his then wife had accumulated significant wealth through business ventures and investments such that he was required, upon the breakdown of their marriage, to pay a substantial sum to his wife. Thereafter the respondent continued his successful business ventures such that by the time of these proceedings he had generated significant wealth. The applicant had become aware through her friendship with long term neighbours in Country G that their son in law, a Mr B lived in Adelaide and undertook work assisting people from Country G. It was with his assistance that she obtained visas for herself and her youngest son Mr Y to travel to Australia for a period of two years, during which time Mr Y would be able to attend school. To obtain the visa the applicant was required to inform the Australian authorities that she was able to support herself and her son financially during his two year period of study, as it was a condition of her visa that she could not obtain paid employment during that time.

Evidence

Evidence Before The Court

The conclusion in Part J of the respondent’s counsel’s closing submissions was that on any of those alternatives the claim should be dismissed.THE PARTIES AND THEIR EVIDENCE Both parties relied on affidavit evidence at trial and both were subject to cross examination. In addition the applicant relied on the affidavit of the respondent’s former daughter in law Ms T, together with the transcript of the cross examination of Ms T at the BFA trial to which no objection was taken (Ms T being deceased). The applicant filed a financial statement dated 28 February 2022 and relied on a case outline filed on 22 March 2022. In addition to his own evidence the respondent also relied on the affidavit of his son Mr O Beroni sworn 9 March 2022. Mr O Beroni was also cross examined at trial. Affidavits of Mr PP, Mr QQ and Mr RR were also relied on by the respondent together with the transcript of their cross-examination at the Binding Financial Agreement trial to which no objection was taken. They were not required for further cross-examination. The respondent filed a financial statement on 25 March 2022 and an amended case outline on 25 March 2022. This relationship had its genesis in a somewhat unusual set of circumstances. I make reference to those circumstances in these reasons as I am satisfied that the expectations of each of the parties both at the commencement of and over the duration of the relationship, particularly with respect to their own financial interests, significantly coloured the evidence of both of them but more so that of the respondent. Both parties were very clear in their evidence in chief as to how the relationship came about. I referred in paragraph 11 of these reasons as to how the applicant came to know of a person in Adelaide known as “[Mr B]”. The applicant deposed to wanting to come to Australia with both of her sons but only being able to travel with her youngest son Mr Y who was under the age of 18 years.[48] She further deposed to:[48] Applicant’s trial affidavit, filed 28 February 2022, paragraph 42.·Asking Mr B about migrating to Australia;[49]·Mr B giving her information about the types of visas and requirements of each type of and the expenses associated with visas to come to Australia;[50]·Applying for a visa for her youngest son Mr Y aged 15 years and a visa for herself;[51]·Mr Y being aged 15 years and not able to speak or read English other than to say “hello”, “yes”, and “no”;[52]·Her former husband agreeing for her and Mr Y to come to Australia;·Mr B preparing all the paperwork for her and Mr Y to travel to Australia and dealing with all Government authorities in Australia;[53]·Mr B telling her that her visa had certain conditions attached to it including not working, living with Mr Y as he was a student, not leaving Australia without Mr Y, Mr Y not leaving Australia without her and not being able to apply for a further visa;[54]·Mr B telling her that if she found work in Australia she could get permission from migration authorities to work and change the “no work” condition on her visa;[55]·Meeting Mr B for the first time at the Adelaide airport in late 2009; and·Telling Mr B’s mother in law that she was looking for housekeeping and cleaning work.[56][49] Applicant’s trial affidavit, filed 28 February 2022, paragraph 39.[50] Applicant’s trial affidavit, filed 28 February 2022, paragraph 41.[51] Applicant’s trial affidavit, filed 28 February 2022, paragraph 43.[52] Applicant’s trial affidavit, filed 28 February 2022, paragraph 55.[53] Applicant’s trial affidavit, filed 28 February 2022, paragraph 47 & 48.[54] Applicant’s trial affidavit, filed 28 February 2022, paragraph 50.[55] Applicant’s trial affidavit, filed 28 February 2022, paragraph 51.[56] Applicant’s trial affidavit, filed 28 February 2022, paragraph 67.

Decision

Reasons for decision

I find that neither of these matters effect my overall determination. Taking all of those matters into account pursuant to the various factors referred to in section 90SF(3) of the Act I find that there should be a further adjustment to the applicant in the sum of $3,500,000.CONCLUSION As I said previously herein, I find that it is unhelpful in the circumstances of this particular case to attempt to attribute a percentage calculation to the applicant’s non-financial contributions referred to in my findings relating to section 90SM(4) of the Act. I find that when considering the needs of the applicant it is likewise, in the particular circumstances of this case, more appropriate to affix an amount by which her contribution entitlement should be adjusted to take into account her future needs. I find that a total payment to the applicant in the sum of $4,000,000 is a just and equitable recognition of her non-financial contributions to the parties’ assets at trial and her future needs as determined by reference to section 90SF(3) of the Act factors. In paragraph 150 of these reasons I determined the value of the applicant’s property at trial to be $633,164 inclusive of $7,000 in superannuation. In paragraph 175 of these reasons I determined the value of the respondent’s property at trial to be $160,251,893 inclusive of $1,648,271 in superannuation. I find that a payment by the respondent to the applicant in the total sum of $4,000,000, together with her retention of the property owned by her at trial will create an outcome where the applicant is in a position to purchase a freehold property for herself in Melbourne should she so choose. I find at her election that she would have sufficient funds remaining to invest such that the income from the investment, together with the funds she generates from her part time employment, will provide her with the ability to enjoy a standard of living that in all of the circumstances of this case is reasonable. I find that the payment of such sum is well within the means of the respondent and is reflective of his overwhelming contribution to the property of the parties as at the time of trial. I find such payment will not affect his ability to maintain a standard of living that in all of the circumstances of this case is reasonable in the future. I find that the orders that I intend to make effect a just and equitable distribution of the assets owned by the parties at trial. For those reasons I make the orders as set out at the commencement of these reasons for Judgment.

Ratio Decidendi

Legal Principle Established

For these reasons I find that the de facto relationship between the parties commenced in the early party of February 2010 and concluded on 16 December 2016, a period of approximately six years and ten months.ALTERATION OF PROPERTY INTERESTS The applicant in these proceedings seeks an alteration of the parties’ property interests. It is the position of the respondent that there should be no such alteration. That question is to be determined by the court in accordance with the provisions of section 90SM and section 90SF of the Act. The relevant provisions of section 90SM are as follows:(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or…(3)The court must 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.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or(ii) 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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or(ii)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 de facto relationship or either of them; and(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and……Section 90SM(3) Pursuant to the provisions of section 90SM(3) of the Act the court must not make an order for alternation of property interests pursuant to the provisions of section 90SM of the Act unless it is satisfied that in all the circumstances it is just and equitable to make the order. The corresponding section of the Act relating to competing applications with respect to division of property between parties to a marriage is section 79(2) of the Act. That provision of the Act was discussed at length in Stanford & Stanford [2012] HCA 52 (“Stanford & Stanford”) in paragraphs 35 to 40 as follows:35. It will be recalled that s 79(2) provides that "[t]he 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". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.36. The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition.[92] It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules"[93], nevertheless, three fundamental propositions must not be obscured.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[94] that a power[95] to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife 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[96]:"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"[97]. Questions between husband and wife 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"[98]. 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"[99]. 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.[92] See Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ; [1984] HCA 21.[93] Mallet v Mallet (1984) 156 CLR 605 at 608 per Gibbs CJ.[94] (1956) 98 CLR 228 at 231-232; [1956] HCA 71. [95] Given by The Married Women's Property Acts 1890-1952 (Q), s 21, a provision which corresponded with s 17 of the Married Women's Property Act 1882 (Imp). [96] (1976) 136 CLR 248 at 257 per Barwick CJ, Gibbs, Stephen and Mason JJ; [1976] HCA 39.[97] Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J; [1963] HCA 49.[98] Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J. See also Wirth v Wirth (1956) 98 CLR 228 at 231-232 per Dixon CJ. [99] R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257.