EAKINS & HIGGINS

FAMILY COURT OF AUSTRALIA

EAKINS & HIGGINS

[2021] FamCA 330

FAMILY LAW – PROPERTY – where the husband historically has had a high income earning capacity which he has always exercised – where a significant proportion of the assets on the balance sheet came into existence post-separation from the husband’s post-separation income and benefits – consideration of the contribution-based entitlement of the parties to all their assets including those acquired post-separation – where the wife was, is and will be the primary carer for the three children of the marriage – where the husband had been made redundant shortly prior to the hearing and was confident of being re-employed – where the wife has re-partnered – orders made for the wife to receive 62 per cent of the net asset pool and the husband the remainder.

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

Bevan & Bevan (2014) FLC 93-572
Chorn &Hopkins (2004) FLC ¶93-204
Coghlan & Coghlan (2005) FLC 93-220
Dickons & Dickons (2012) Fam LR 244
Ferraro & Ferraro (1993) FLC 92-335
Gabel & Yardley (2008) FLC 93-386
Marsh & Marsh (2014) FLC 93-576
Pierce & Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108
Trask & Westlake (2015) FLC 93-662

APPLICANT:

Ms Eakins

RESPONDENT:

Mr Higgins

FILE NUMBER:

SYC

3807

2016

DATE DELIVERED:

21 May 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

1, 2, 3 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Longworth

SOLICITOR FOR THE APPLICANT:

Gordon & Barry Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Keypoint Law

Orders

All extant applications be dismissed.
That order one of interim orders dated 6 September 2017 be discharged and the Court notes the husband’s undertaking that:
(a)Pending him obtaining employment or the conclusion of Term Two in the year 2021 school year, whichever event occurs first, he will pay as and when they fall due the school fees at N School for B and P School for C and;
(b)As and from the date of these Orders and until a fresh assessment of child support issues requiring the husband to pay to the wife in excess of $750 per week, the husband will pay by way of his current child support obligations the sum of $750 per week directly to the wife noting that the current assessment is $369 per month.
The wife’s application for lump sum child support be dismissed.
That within 120 days from date of delivery of these Orders the husband pay to the wife the sum of $1,662,725 and have the wife’s guarantee in respect of Q Bank loan over the properties at the E Street, Country F (“the Country F property”) and J Street Suburb K (“the Suburb K property”) released.
Thereafter all assets in each party’s name including superannuation to be their assets absolutely.
In the event the husband is unwilling or unable to comply with Order 4 herein the husband is to place the Country F property on the market for sale no less than 140 days from the date of this Order at the best price reasonably obtainable with the husband to have control of the sale provided the following conditions are met:
(a)The wife and husband to agree on the agent and conveyancer or solicitor to conduct the sale and failing agreement the husband nominate three (3) agents and three (3) conveyances or solicitors and the wife is to select one from each category;
(b)The husband provides an irrevocable authority to both the agent with conduct of the sale and the conveyancer or solicitor with conduct of the sale to permit the wife to, on any occasion, contact those professionals and be advised as to the progress of the sale;
(c)The parties to agree whether the sale be by way of auction or private treaty and in the event of a failure to agree, as recommended by the listing agent;
(d)The parties to agree on the listing price by way of private treaty or reserve if sold by way of auction and failing agreement, as recommended by the listing agent;
(e)The wife be provided with a copy of the first page of the exchanged contract or such other document as is provided for under Country F law and be notified 14 days prior to settlement of the date of settlement and be provided with a copy of the settlement sheet;
(f) From the sale proceeds the following be paid:
(i)Current mortgage in respect of the property with Q Bank fixed in the amount of $1,420,233. In the event the mortgage is greater than this fixed sum the husband is to pay that difference from his share of the property settlement;
(ii)Agents’ commission, conveyancing or solicitors cost, and usual conveyancing adjustments;
(iii)To the wife the sum of $1,662,725 together with interest calculated from 120 days of the date of this judgment;
(iv)Simultaneously with the payment as per Order 6(f)(iii), the wife’s guarantee in respect of the mortgage over the Suburb K property is to be discharged;
(v)Thereafter the balance to the husband.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3807 of 2016

Ms Eakins

Applicant

And

Mr Higgins

Respondent

REASONS FOR JUDGMENT

This is a property matter concerning the division of the parties’ property.
Mr Longworth of counsel represented the wife and Mr Lethbridge SC, the husband.
Ms Eakins (“the wife”), her partner Mr T, Mr Higgins (“the husband”) and his brother Mr R were all cross examined.
The material read was as follows:
a)For the wife:
i)Affidavit of the wife filed 9 November 2020 including tender bundle;
ii)Affidavit of the wife filed 28 January 2021;
iii)Financial Statement of the wife filed 9 November 2020;
iv)Affidavit of Mr S Eakins filed 9 November 2020;
v)Affidavit of Mr T filed 9 November 2020.
b)For the husband:
i)Affidavit of the husband filed 19 December 2020;
ii)Affidavit of the husband filed 29 January 2021;
iii)Financial Statement of the husband filed 18 December 2020;
iv)Affidavit of Mr R filed 12 January 2021.
The exhibits were as follows:
a)For the wife:
i)Wife’s exhibit 1: Case outline of the wife;
ii)Wife’s exhibit 2: Costs notice of the wife.
b)For the husband:
i)Husband’s exhibit 1: Case outline of the husband;
ii)Husband’s exhibit 2: Child support assessment of the husband dated 2021;
iii)Husband’s exhibit 3: Updated valuation of the Country F property of $2.5 million Country F dollars;
iv)Husband’s exhibit 4: Costs notice of the husband;
v)Husband’s exhibit 5: Husband’s proof of evidence;
vi)Husband’s exhibit 6: Mr R’s tax return for the year 2012;
vii)Husband’s exhibit 7: Husband’s tax return for year ending 30 June 2005;
viii)Husband’s exhibit 8: LinkedIn profile of the wife;
ix)Husband’s exhibit 9: Email dated 2 February 2021 attaching a confirmation of payment from P School, receipt from N School, BG Bank print out titled “Overseas Transfer History” showing payment to P School and N School;
x)Husband’s exhibit 10: Husband’s submissions.
c)There were three court exhibits:
i)Court exhibit 1: Joint balance sheet;
ii)Court exhibit 2: Report of the Single Expert Valuer;
iii)Court exhibit 3: Updated joint balance sheet.
The wife ultimately sought 67.5 per cent of the assets being 52.5 per cent by way of contribution and 15 per cent pursuant to the factors under section 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The husband ultimately contended for an equal division of the assets and submitted that the wife’s entitlement need not be adjusted for s 75(2) factors.
Initially the wife had sought an order for lump sum child maintenance in the sum of $1 million and injunctive orders restraining the husband from returning overseas until he complied with whatever property orders this Court made. Fortunately both these applications were abandoned at the trial.
The parties agreed that prior to my delivering judgment they would provide to the Court updated details in relation to the shares to be vested to the husband in February 2021, whether Mr T was successful in his job with V Company and the husband’s employment status. By consent a document was received by the Court on 18 May 2021 addressing those matters and will be included in this judgment.
That document reads as follows.
The parties do not wish to re-open the matter but confirm the following are “agreed fact[s]” (within the meaning of Section 191 of the Evidence Act) between the Applicant and the Respondent for the purpose of her Honour’s judgment:
1.316 ZZ Business shares vested to the Respondent on 8 February 2021;
2.285 ZZ Business shares vested to the Respondent on 12 February 2021 with the balance of the grant that was eligible for vesting on that date not vesting to the Respondent;
3.The value of the 601 ZZ Business shares that vested to the Respondent in February 2021 is $27,945 (the Court noting the parties agreement to that sum being placed on the balance sheet filed 3 February 2021 for each of them and in lieu of $32,976 currently on the Applicant’s side and the “NIL” currently on the Respondent’s side);
4.Mr T did not get the job with V Company and there has been no change in the status of his employment and he continues to be employed in the same role as evidenced at trial; and
5.The Respondent left Australia on 15 March 2021 in order to retain his Country F tax resident status for the current financial year. The Respondent has not yet secured full-time employment. He is consulting for a company, W Inc. on the basis of a Referral Fee Agreement and as set out in the attached Referral Fee Agreement dated 2 March 2021.
The factual dispute between the parties was in part fuelled by the wife’s assertion that:
a)The husband had a beneficial interest in a property owned by his brother, “the Suburb X property”;
b)The husband had failed to provide full and frank disclosure of his financial position including not disclosing rent received for the parties’ property in Country F and expenditure by him of his significant income earned post-separation;
c)The rent received and the husband’s savings from income earned post-separation together with shares vested and to be vested post-separation be included in the property pool for division;
d)The wife disputed the agreement asserted between the husband and his brother that his brother and wife would pay no rent for their occupation of the property at J Street, Suburb K and sought rent that could have been received be included as an add back in the balance sheet;
e)The wife initially disputed that the property at Suburb K was equally owned between the husband, his brother and his wife as to a third interest however abandoned that argument at trial when the evidence became clear.
Much of the focus of the hearing was balance sheet issues and in his concluding submissions Mr Lethbridge SC for the husband correctly set out there were four balance sheet issues for determination as follows:
a)How to treat the capital paid to the wife in the sum of $240,000 by way of an interim property distribution in two tranches, the disposition by the wife of the sale of a property owned by her in Suburb M in 2017 and the disposition of the proceeds of sale of a property owned by the husband in Suburb H which he sold in 2017;
b)How to deal with legal fees paid by the parties;
c)How to deal with the husband’s significant savings accrued post-separation and shares vested and yet to be vested accrued by the husband post-separation from his work;
d)That the amount of $74,859 set out in item 13B of the balance sheet ought not to be included in the pool as this has been designated by the husband for the payment of school fees.

Short, relevant chronology

The husband was born in 1969 and the wife in 1974.
In 2001 the husband, who was already working in Asia and had work connections in Asia, established a Y Bank account in Z City. He was at this period of time employed in Country AA and had a regional role in Asia.
On 28 September 2001 the wife purchased her property at Suburb M (“the Suburb M property”). The wife is a professional who worked as a business consultant.
From May 2003 to August 2004 the wife worked at BB Company in Country AA and this is where the parties met, whilst both working in Asia.
In 2004 the husband was transferred to Country F and he established a BG Bank account in Country F.
From 2004 to, effectively, December 2020 and perhaps currently, the husband was domiciled in Country F and was resident in that country until December 2020.
The wife asserts the parties commenced living together in DD City in either February or March 2004, and little turns on this.
The husband asserts at the commencement of their cohabitation, and in April 2004, the husband had an investment in trees worth AUD$2,000, bank accounts with FF Bank, now GG Bank a bank account overseas, HH Bank and Y Bank in Z City totalling $80,000. He was the sole registered proprietor of a property at Suburb H (“the Suburb H property”), and the sole registered proprietor of a property in Suburb JJ (“the Suburb JJ property”) and had some minimal superannuation.
The wife’s assets at the time of cohabitation were her property at Suburb M with a mortgage, some 1,400 KK Company shares, some superannuation, jewellery, home contents, and bank accounts in Country AA.
At the commencement of cohabitation the husband was the Managing Director (Country AA) for LL Pty Ltd, earning about $120,000 per annum, and was promoted to Regional Vice President and transferred to Country F in October 2004 and worked in that capacity until 2008. The wife worked as a professional and the parties maintained separate bank accounts.
When the parties moved to Country F in late 2004 the wife also took up a role with LL Pty Ltd Country F. That employment ceased in about July 2005. In August 2005 the wife began to work at MM Company in Sydney, while continuing to look for roles in Country F and I accept the wife’s evidence that she was determined to live with the husband in Country F and that this then limited her business opportunities in Australia as a professional.
The wife asserted that the husband contended the parties had separated between July 2005 and June 2006. That is not what his trial affidavit said. What he said was when the wife was in Sydney for a year working for MM Company they became distant, but when she returned to Country F in June 2006 their relationship blossomed and they became engaged. Nothing turns on this and it was of no consequence to the ultimate decision whatsoever to this Court.
The parties began to live together in a rented home at E Street in Country F in June 2006. In December 2004 the husband established the BG Bank account ending …47 and this is his primary day-to-day account.
In March 2005 the husband’s brother and his then wife, Ms NN, purchased a property at J Street Suburb K (“the Suburb K property”) for $970,000 as tenants in common, with each the husband, his brother and his brother’s then wife owning one third of the property. That property adjoins a property which was then owned by the husband’s parents, the husband’s father or mother is now deceased, but the remaining parent lives in their home.
It is the husband’s case that his brother and his brother’s wife provided an initial capital deposit of $97,000, the stamp duty of $39,144 and other purchase costs of $8,139, being a total of $144,283, for the purchase of the property and the husband provided no capital. The husband agreed to meet the mortgage payments for his share and additional payments to match the initial capital that his brother and his wife had put into the property. The wife disputes this family arrangement.
In 2009 the parties entered into a total refinance of all their properties, which included the Suburb K property. At that time the husband took on more than his initial one third share of the mortgage in order to pay back the capital that his brother and his former wife had put into that property at its initial purchase.
By November 2020 there was only a capital deficit of some $3,237 owing by the husband to his brother and his brother’s former wife, it having been $9,795 in June 2020, otherwise the husband owned one third of the Suburb K Property and had no debt to his brother and his former wife.
The wife disputed this family arrangement and asserted that there had been collusion between her husband and his brother to minimise her entitlement to property and that her husband’s entitlement was greater than one third.
Only at the trial did she accept the reality of the situation that her husband’s entitlement was one third in this property. It is important to note that this one third interest had been acquired during the relationship and prior to separation from income earned by the husband during the relationship and is clearly a matrimonial asset.
In May 2005 the husband sold the Suburb JJ property for $485,000 and contributed this money to the family expenses, towards a business venture with his brother and the purchase of the Country F property. The wife made no direct financial contribution to the Suburb JJ property during the relationship.
The parties were living separate and apart from June 2005 to May 2006 when the wife returned to Country F from Australia. In 2006 when the wife returned to Country F she had set up a company, PP Proprietary Limited, and she continues to use that vehicle, PP Proprietary Limited, to earn her income as a professional in Australia.
In March 2007 the parties purchased their home at E Street, Country F (“the Country F property”) for $1.65 million Country F dollars. The husband was a permanent resident of Country F and he was the only one able to purchase the property and be on the title. Nothing turns on that issue and I accept the husband’s evidence.
When the parties’ property was purchased in Country F for $1.65 million Country F dollars in 2007, the husband financed the purchase with the deposit from his savings in Australia of approximately AUD$150,000 and a mortgage from the QQ Bank of $1,485,000 Country F dollars. The husband made all the mortgage payments in relation to the Country F property and paid all other outgoings. The wife made no direct financial contribution to the deposit, the mortgage repayments or maintenance costs of the property from the date of purchase and continuing. The wife made some contribution to outgoings of the Country F property, but the bulk of the funding of the purchase and ongoing maintenance of the mortgage came from the husband’s income, a situation which has continued post separation.
The wife lived in Country F from May 2006 to January 2014 and all three children, B born in 2008, now 12, C born in 2010, now 10 and D born in 2013, now 7, were born in Country F.
Between 2007 and 2008 the husband lent his brother $50,000 to assist him in relation to a property at RR Street, Suburb X which the husband’s brother had purchased in 1999.
In or around 2007 the husband and wife, Mr R and his then wife, Ms NN, signed a Heads of Agreement to invest $200,000 initially with further access of up to $100,000 in a line of credit for a 30 per cent interest in the issued ordinary shares of SS Proprietary Limited.

It is apparent that the wife, with her particular professional skill set, was instrumental in creating the Heads of Agreement document and setting up the parameters of this venture. The parties hoped that this would be profitable, that Mr R and his wife would carry out the work of the business making a profit for everybody in the family. Unfortunately this did not eventuate and this investment is now lost.
The parties married in 2007 in Australia.
In 2008 the husband became a permanent resident of Country F.
In 2008 TT Company took over LL Pty Ltd. The husband remained employed with the new company and received a bonus of approximately AUD $753,000, paid into the Y Bank account in his name which he had established prior to cohabitation. This was part of the money that the parties used to invest $335,000 between March 2008 and August 2009 into the business venture to be run by the husband’s brother and his wife.
From the beginning of 2008 to August 2009 the wife worked as general manager for UU Proprietary Limited. The wife oversaw management of VV Pty Ltd in UU Proprietary Limited, part of the company structure they had entered into with the husband’s brother and his wife, which companies were unfortunately not successful.
In February 2008 the husband had AUD$806,000 in his Y Bank account comprising of his bonus of AUD$753,000 when TT Company took over LL Pty Ltd in 2008, savings from salary and previous bonuses received by him.
The wife received a third of the ordinary shares in UU Proprietary Limited and VV Pty Ltd and the wife was fully involved in all aspects of this business, including how the company’s finance was structured and ran. The wife dealt with the accountants for the business and was intimately involved in all aspects of this venture.
In 2009 the parties entered into a refinance agreement with Q Bank of all properties then in their name, which refinance included the wife’s property at Suburb M, the husband’s property at Suburb H and the husband’s interest in the Suburb K property. It was a very beneficial loan arrangement. The interest rate on the refinance in 2009 was around 1.4 per cent at a time of global financial crisis when interest rates in Australia were approaching 10 per cent. This was a most beneficial arrangement for all the parties and the husband agrees the wife was instrumental in arranging this refinance given her particular skill set.
The refinance for the Suburb K property was $740,000, having been reduced from the original loan at the time of purchase of $873,000. The husband, his brother and former sister-in-law agreed they would continue to pay one third of the mortgage, and paid no rent to the husband as they were renovating the property, maintaining it and paying outgoings. The non-payment by the husband’s brother and his wife of rent while they occupied the Suburb K property is a source of contention for the wife yet, given the parties lived overseas, was a sensible arrangement.
By this stage B, the parties’ eldest child was 12 months old. The wife did some part-time work after the birth of B for various entities using her vehicle of PP Proprietary Limited however her main role was in providing care for the parties’ children and supporting the husband in his work and roles in the company he worked for which included extensive overseas travel. Thus it was crucial the wife was available to provide care for the children.
It is clear by late 2009, early 2010, the wife no longer wanted to be involved in the businesses that the parties had established with the husband’s brother and his former wife, and the wife ceased her involvement in that business and I accept that the business was not doing well. Concern was raised at the cost of winding the businesses up by all parties. This became evident from the evidence of the husband’s brother.
On 30 October 2010, the husband arranged for the balance of his Y Bank account to be transferred to a joint account, some $471,000, and he closed his prior sole account and the wife had free access to that money.
In March 2011 the husband was made redundant by TT Company. He received a redundancy of $220,000 and paid that money into his BG Bank account in Country F, and he used this money to support his family.
The husband’s brother repaid the husband $50,000 in relation to the Suburb X property in July 2011, and this repayment was paid to the husband into his GG Bank account.
In September 2011 the Suburb X property was sold. The wife contends the husband told her they would get $110,000 in profit. The husband denies this.
In 2012 the husband worked as a consultant for a company based out of Australia and continued to support his family from this money, as well as using redundancy monies.
In February 2012 the parties restructured some bank accounts in Z City after advice and the husband set up a Y Bank premium account in his name. From August 2012 to December 2012 the wife worked as an educator for WW University.
In September 2012 the parties used money in the Y Bank premium account to invest USD$25,000 in XX Company.
In 2013 the wife worked as an educator for YY University, Country F campus.
On 18 February 2013 the husband commenced working as Managing Director of ZZ Business, which position he retained until September 2020. D was born in 2013.
The parties closed their joint Y Bank account in December 2013.
One of the companies associated with Mr R, Ms NN and the parties, set up in 2008 to 2009, was sold to Mr AB for $100.
From January 2014 the Country F property was rented for $7,800 per month. The wife and children left Country F in November 2013 and commenced living in Country L.
The wife made much of the income from the rent of the Country F home not being accounted to her sufficiently by the husband.
The husband was solely supporting his family and was providing significant sums to support the wife and children in Country L, as the wife could not work in that country. The husband was maintaining the mortgage on the Country F property together with providing money for the wife and children in Country L. The husband says, at paragraph 66 of his affidavit:
From January 2014 to October 2015 [the Country F property] was rented for $7,800 per month. I took the income from this rental in cash to Country L for family expenses as requested by the Wife as Country L was a predominately cash society…I paid the rent for the Country L property (due in advance) as well as school fees, staff wages and other household expenses.
The husband further says, at paragraph 176:
I continued to fully support the family after separation and until June 2017…I continued to pay for the Wife’s domestic help which included 5 domestic workers including a maid, nanny, driver, gardener, night time security guard…the cost was approximately AUD $1,800 per month.
The accommodation and lifestyle for the wife and children in Country L was luxurious. There were at times 5 people employed by the wife in the large, property she lived in with the children, and the children were attending private school and preschool. I make no criticism of this, but it is clear that the husband solely supported his family at this time and that rent received from the Country F home contributed to this support. I accept the wife’s complaints in her affidavit that he was tardy on occasions in making payments and that this caused her anxiety and perhaps this is part of the reason she no longer trusts him.
The parties separated in June 2015.
In August 2015 the parties signed an application for D to attend BM School and she and the children have lived in Australia since 2017.
The parties divorced in December 2016.
The wife commenced her proceedings in May 2017.
The wife received $40,000 by way of partial property settlement in May 2017.
The wife sold her Suburb M property in June or July 2017 for $620,000 netting approximately $447,675.46 and retained those proceeds.
The husband sold his property in Suburb H in 2017 and placed the net proceeds of sale of $314,890 into the husband’s GG Bank bank account where it remains today and has increased by $30,000.

Short Synopsis

The wife has a view clearly expressed in her material that her husband has endeavoured to minimise her entitlement to property , failed to disclose his income and expenses and has not provided appropriate support for she and the children post-separation when the facts are the opposite.
The wife, as is often the case when trust between parties vanishes, does not accept any fact her husband tells her without proof. This is a significant impediment to resolution.
For example, it may be a thorn in the wife’s side that Mr R, the husband’s brother, and Mr R’s former wife had lived in the property at Suburb K, as she said, rent free. However that is not the husband minimising her entitlement to property. This was the agreement the husband struck with his brother at a time the parties had just commenced their relationship and, given he was living and working overseas, was a practical arrangement.
The wife alleged her husband had an interest in the Suburb X property. After hearing his and his brother’s evidence I find he does not and I accept the husband’s position he has no interest in the Suburb X property, never had an interest and has been repaid the loan to his brother for reasons that will follow.
The wife did not disclose that from January 2014 to December 2017 she received $43,455 in rent from the property she and the children lived in and for which the husband was paying all outgoings until the husband brought this issue to the attention of the Court in 2017.
The wife sold her Suburb M property, unbeknownst to the husband, on 27 June 2017 for $620,000 netting $447,675.98 which sum she retained.
In September 2017 the Court, constituted by Justice Rees, made the following orders:
a)The husband was to pay maintenance for the children in the sum of $1,150 per week, which he has always paid;
b)The wife was to receive $200,000 by way of interim property settlement;
c)The wife’s application for spousal maintenance was dismissed; and
d)The husband was restrained from encumbering or dealing with the Country F property, the Suburb H property and the Suburb K property.
The husband sold his Suburb H property on 3 November 2017 for $755,000, netted $314,890 and $105,782 was paid to the ATO for capital gains tax as he was a non-resident.
As the husband says in his affidavit, he has complied with these orders. I note final parenting orders were entered into at that stage as well and the husband was residing in Country F. It is the husband’s contention the parties should now look at varying those orders, given he now intends to remain in Australia after the change to his employment in Country F in September 2020 when he was made redundant.
In 2017 the wife determined to rent a property at AH Street, Suburb AJ next door to her parents for a significant rental of about $3,200 per week. That is a matter entirely for her.
In March 2018 the husband transferred $117,000 from his BG Bank account, being his Country F salary and savings and in February 2019 he transferred $115,909 from his BG Bank account, being his Country F salary and savings, to his GG Bank account. There is no doubt the husband was able to save significant money from his income whilst paying all outgoings on the home and supporting his children.
The parties have endeavoured to resolve the property matter at a conciliation conference and mediation, but have failed.
In June 2020 a restructure of the husband’s company, ZZ Business, was undertaken and the husband was made redundant in September 2020 and accepted that redundancy.
In January 2020 the wife and Mr T commenced cohabitation and in mid-2020, the wife and Mr T opened a joint ANZ account. Mr T paid $611 per week into that account, and his evidence was he now contributes $970 a week to the account.
By 30 June 2020, the wife’s taxable income was $95,298.
The husband returned to Australia in September 2020. In October 2020 he placed $350,000 in a three month term deposit with GG Bank, where it remains.
The wife, Mr T and the children moved to another rented property in Suburb AJ in November 2020 for a significant rental of close to $3,000 per week.
The children were unable to see their father for the whole of 2020 due to COVID-19, and the parenting orders made in 2017 are now entirely inappropriate as they provide for the children to spend time with their father overseas if he is living there when his intention is, subject to obtaining employment, to live permanently in Australia.
At separation in June 2015 the parties had the following assets.

Assets at separation

ASSETS
Ownership		Description	Value
1	The Country F property	$2,000,000
2	The Suburb H property	$640,000
3	The wife’s property at Suburb M	Sold for $620,000 in 2017
4	GG Bank account	$25,000
5	Bank accounts with BG Bank	$23,000
6	Monies and investment in the Y Bank account	$406,000
7	Investment with AY Investments, AK Super Fund	$67,000
8	Superannuation with Central Provident Fund Country F	$190,000
9	One third interest in the Suburb K property	Currently worth $520,000
Total			$4,491,000
LIABILITIES
10	Q Bank	$2,000,000
11	Mortgage over the wife’s property at Suburb M	$151,124.67
12	One third share of mortgage of $740,000 at the time of re-finance in 2009	$270,000
13	Mortgage over the Suburb H property	$440,000. This property was sold in 2017 netting the husband $314,000
Total			$2,861,124

Item 6 in the above table, $406,000 in the husband’s premier Y Bank account, was used to fund the wife’s $240,000 interim property settlement.
The husband sold his Suburb H property on 3 November 2017 for $755,000, netted $314,890 and $105,782 was paid to the ATO for capital gains tax as he was a non-resident.
The wife sold the Suburb M property for $620,000 in June 2017, repaid the mortgage of $151,124.67, netted $447,000 from the sale which sum she retained. This sale was carried out by her without the husband’s knowledge. Otherwise the parties’ assets have remained and increased in value.
In relation to the current assets of the parties, set out at paragraph 153 of this judgment, I note that none of the ZZ Business shares, items 17, 18 and 19 on the balance sheet, that have vested, or may be vested, were vested or to be vested at separation which time is now approaching six years. These three items amount to in excess of $650,000.
The Country F property has been primarily occupied by the husband post-separation, and he has maintained that property. The husband has received rent at times when he accommodated other people living in that property. This too is a source of contention for the wife and she seeks to add back all rent the husband received.

Parties’ evidence

As the evidence unfolded, the wife’s assertion of the husband’s failure to disclose was not supported on the evidence.
The husband sets out in his case outline that the wife sold the Suburb M property for $620,000, repaid the mortgage of $151,124.67 and netted $447,000 from the sale and used the proceeds of sale as she deemed appropriate.
The husband paid the monies he netted from the sale of his property at Suburb H into a term deposit account and disclosed this transaction to the wife.
The husband deposited $64,983 and $73,531 from his BG Bank account into his GG Bank account in 2020, further indication of capacity to save whilst working and paying outgoings.
The husband’s job with ZZ Business required extensive overseas travel and came to an end on 31 December 2020. He received a redundancy payment of $293,491 in 2020, having commenced working with the company in 2013. Thus the period of time that the parties were in a relationship and regarded their marriage as on foot from the date of the husband’s employment, 2013, to the date of separation, June 2015, was a period of two and a half years. The parties have now been separated physically for nearly six years, and the husband has continued to earn a significant income in his role with ZZ Business post-separation.
The husband received 985 unvested shares post-separation, adding to the 12,855 vested shares vested post-separation and the value of those shares is well in excess of $600,000. He has also received a compensation payment of $50,231 since being made redundant, a payment which attracts no tax. The share vesting will attract tax, which is not known at this stage.
He is seeking employment in Australia, he is in good health, he has not re-partnered, he is a citizen of Australia and a permanent resident of Country F.
The wife’s partner Mr T and his daughter, BT, live with her, as well as another child of Mr T’ BV, on occasions. AQ is an adult and AL is in primary school. The wife and Mr T share expenses of the Suburb AJ property as to an eighth-eleventh share for the wife and a third-eleventh share for Mr T.
The wife is a professional and has continued to earn income and works for her father’s group of companies and, to her credit, she has undertaken other training to broaden her skill set. The wife holds 30 ordinary shares in UU Proprietary Limited however I find the shareholding both parties had in business ventures with the husband’s brother and his wife are effectively worth nothing and will delete them from the balance sheet.
The husband used his GG Bank account, which consisted of the net proceeds of sale from the Suburb H property and savings from his income, to pay Australian expenses, including child support, children’s expenses and living expenses in Australia, and has prepaid B and C’s school fees up to the end of Term 2 2021 in Australia at private schools.
The wife has had the benefit of $240,000 by way of interim payment, together with the net proceeds of sale of her Suburb M property, $447,675, totalling approximately $690,000 in 2017, a period now approaching four years. $690,000 over four years is over $160,000 per year in the wife’s hands, together with child support of $1,100 per week and payment of the children’s school fees. The wife has some $129,000 remaining from those two sources.
Both parties’ counsel filed helpful case outlines.
The husband’s case outline sets out the issues in dispute between the parties which were inevitably balance sheet issues. The wife had conducted an audit of all the expenditure made by the husband since separation asserting that he could not account for $146,000 of money that had been expended and in some way this should be added back to the pool or taken into account by the Court. That argument was fallacious. It is clear on the evidence that the husband has had, whilst working with ZZ Business, a surplus of income over necessary expenditure and that he has used this surplus of income to put towards term deposits and other savings in various bank accounts.
Further, it was not necessary for the wife to provide to the husband details of every dollar she spent, and nor did she do so, thus neither was it necessary for the husband. Rather, the Court must know inter alia the husband and wife’s incomes, value of their financial resources and assets, expenditure of their income generally, and value of any interim property distributions. There is no doubt that the husband has been able to increase his savings whilst maintaining payments for his children and wife during the relationship and post-separation, and the wife has not, and he has also been able to pay legal fees from his income, a luxury not available to the wife.
Importantly, the law is clear, a Judge is not required to conduct an “accounting exercise” and determine to the dollar whether money was properly spent. Dickons & Dickons (2012) Fam LR 244 (“Dickons”) at [25] is authority for this ratio which is that “…the process required of the Court by s 79 [of the Family Law Act 1975 (Cth)] is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise”.

Other relevant facts are the impact upon my decision of the husband’s current unemployment and whether that is a relevant s75(2) factor under the Act together with the treatment of the shares due to his employment post-separation, vested and to be vested and money he has saved from income earned post separation.
A significant factor in this trial was the contribution-based entitlement of the parties to the assets currently in their name which have been acquired post-separation. There is no doubt, and consistent with case law such as Trask & Westlake (2015) FLC 93-662 where the Court confirmed at [15] that although the wife’s less tangible contributions in her role as parent and homemaker were “not susceptible to a dollar calculation, [this] does not render them less important” than the husband’s post-separation financial contributions.
Further, in Marsh & Marsh (2014) FLC 93-576 at 79,075:
It is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh the nature, form and characteristics of all contributions across the whole of the period under consideration.
The law is clear: a party can make a contribution post-separation to the assets of the parties’ in existence at separation and those accumulated post-separation due to the care of children of the relationship as well as a due to direct or indirect financial contribution.
In this matter the facts are that a significant proportion of the assets on the current balance sheet came into existence post-separation. This is important as it is the wife’s case that all the assets in the husband’s possession, vested or to be vested, are to be included in the pool of assets for division yet I should only include in the pool the remainder of the interim property distribution she received of $240,000 together with the net proceeds of sale of her property at Suburb M of $447,000, which figure is now reduced to $129,000.
At separation in 2015 the parties may have had just over $2 million excluding superannuation. Having regard to the current balance sheet, Court exhibit 1 and later amended to Court exhibit 3, the gross asset base of the parties, excluding superannuation is between $5 million to $5.5 million and net, some $3.6 million. The wife had received $690,000 of assets or money in existence at separation. Adding this figure to their current net position results in a “real” increase in the parties’ assets of over $4 million which is an increase in the parties’ assets of over $2 million post-separation. That has not occurred solely due to an increase in the value of the Country F property although that is a partial explanation.
The Country F property was purchased for AUD$1,350,000 in 2007 and is now valued at $2.45 million, an increase of some $1.1 million. Thus the remaining increase in value of over $1 million has come about due to savings from the husband’s income and shares vested and to be vested together with redundancy payments post-separation.
Thus it is a clear fact in issue assessing the wife’s contribution-based entitlement to the current assets given an increase in the value of the parties’ assets post-separation from the husband’s sole endeavours by way of earning income. In so saying I do not diminish the wife’s contribution to the care of the three children of the marriage and that she is an exemplary parent. As the case law establishes, I must look at the entirety of the parties’ contribution over the whole of the period referred to which is pre, during and post the relationship.
The wife has not, post-separation as she did during the relationship, assisted the husband in carrying out his work day-to-day by virtue of the physical separation. Her affidavit of 9 November 2020 sets out how it was she assisted the husband in earning his income when they were in a relationship. For example, at paragraph 52.1, she did advisory work for LL Pty Ltd, a company her husband was working with in July 2007 in Country F. She assisted in the sale for LL Pty Ltd in respect of the purchase of it by third parties in 2007. At paragraph 67, she carefully assessed a draft sales agreement for LL Pty Ltd in April 2006, facts which the husband does not dispute and I accept. Post-separation her contribution has been to the care of the family which then allowed the husband the freedom to earn his income unimpeded by the necessity to care for the children.
The husband’s financial contribution post-separation has been both income earned and the emollients attached to that income such as substantial share vesting and shares to be vested. The vesting of shares or shares to be vested is directly related to his performance in his job without the direct support of the wife that she had provided whilst the parties lived together and their relationship was on foot.
From the commencement of his employment with ZZ Business the parties were together for a period of 2.5 years. He parted ways with the company in 2020, having worked there for seven years in total. The wife’s contribution to the husband’s income and his capacity to continue to work at this high level post-separation was significantly aided by her care of the parties’ three children. There is no doubt the wife has been the sole carer of the children post-separation and, she would assert and I might agree, their sole carer since their birth due to the husband’s work.

Parties’ positions

Mr Longworth submitted that I should only take into account the remainder of the wife’s interim property distribution, which is $129,405, and not the full amount she received of $690,000 being the interim property distribution of $240,000 together with the sale proceeds of the Suburb M property as the wife spent this money on providing for the children, her needs and legal fees which the husband paid from income.
Further, that all assets in the husband’s name should be included in the matrimonial pool for division due to the wife’s contribution to those assets post-separation in the care of the children and during the relationship. These assets include his post-separation savings from income and shares vested and to be vested arising as a result of his employment post-separation.
This is an important argument as over $2 million of the assets in the balance sheet were not in existence at separation and have come about by dint of the husband’s employment, his savings, shares vested in him due to his work and his performance in his work and an increase in the value of the home in Country F. The vesting of shares is directly related to the husband’s performance and is highly relevant to the number of shares that have vested or are to be vested.
I accept Mr Longworth’s submission that the husband has been able to increase savings in accounts and pay his legal fees post-separation due to his income and the wife has not and that she has been required to expend capital and monies available to her for her support and for legal fees. I accept that is correct and relevant.
I accept this fact is an important consideration under section 79 and 75(2) of the Act and is a relevant factor in my determination. I must take the approach of assessing the entirety of the parties’ contributions during their relationship and post-separation including, and importantly, the care of the children. This is the approach that I see is consistent with the authority and highly relevant to this matter, for example the decision of the Full Court in Dickons wherein the Court held at [24]:
… the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
Their Honours went on to say at [25] that it is a “well-established recognition in the authorities…that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise”.
Assets that were in existence at separation but perhaps no longer exist may be readily included in the assets for division. For example, the $240,000 received by the wife by way of interim property distribution, the net proceeds of sale of her property at Suburb M of $447,675.98 and the husband’s net proceeds of sale of his property at Suburb H.
I accept the submission of Mr Lethbridge SC that under section 75(2) of the Act the following factors are relevant to my determination:
a)That the husband is confident he will obtain employment in Australia;
b)That being his desire, such employment may continue his engagement in significant overseas travel when that is available;
c)That he is unsure of the value of his employment;
d)Historically the husband has been a high income earner and wealth generator by his earnt income. His salary, when working for ZZ Business, was gross $10,190 per week and upon redundancy, significant shares were vested in him;
e)That the wife has re-partnered with Mr T who has traditionally held managerial positions. Mr T is currently unemployed and on JobSeeker and had been shortlisted for a position with V Company at an income of $190,000 per annum which he was unsuccessful in obtaining. Mr T has no other assets than his income and he supports, equally with his former wife, his daughter BT;
f)That the wife is working in her father’s company and providing other services to the various companies her parents have an interest in, earning some $95,000 per annum by way of part-time work;
g)That the wife has not been in outside paid employment for 15 years. The wife is a trained professional who was clearly a highly valued employee when working for MM Company and other companies in 2006 and 2007;
h)The wife will always have the bulk of the care of the children given the nature of the husband’s work and what he anticipates will be the type of work he can obtain in Australia.
I was asked to read Justice Rees’ decision of 2017, Eakins & Higgins [2017] FamCA 684, in this matter wherein her Honour dismissed the wife’s then claim for spouse maintenance. It was submitted to me by Mr Lethbridge SC that her Honour dismissed the claim for spousal maintenance simpliciter as the wife had sufficient funds to support herself.
Mr Longworth said it was not as simple as that. Going to her Honour’s judgment, I have formed the view that it was that simple, but accept the ratio of her Honour’s judgment may have a bearing on how I treat money in the wife’s hands.
Her Honour at paragraph 25 dismissed her claim for spousal maintenance as she had $450,000 in the bank being the proceeds of sale of her unit and thus could support herself from this fund. However, her Honour made an order for interim property distribution to her of $200,000 and child support payments despite the existence of this capital sum.
Her Honour treated the wife’s sale proceeds as available to her for her support, much like the husband’s income that was available to him in circumstances where her Honour found at paragraph 16 the husband “did not dispute he had a capacity to pay” including spouse maintenance and clearly on the evidence he did.
There are no allegations of violence or poor behaviour. The dispute centred on the wife’s position that her husband had in some way endeavoured to minimise the assets available for distribution and/or was endeavouring to deprive her of her entitlement to their property and had done so by conduct as well as failure to disclose his true financial position. The facts do not support the wife’s concerns or the position she took.
In relation to conduct, the wife was involved in the business venture with the husband’s brother and his former wife at every level. The wife was involved in the purchase of the property at Country F. The wife had access to the husband’s bank accounts during the marriage. The husband’s position in relation to his ownership of the Suburb K property and that he had no interest in the Suburb X property were ultimately accepted and he has not failed to disclose or inform the wife of matters that she had difficulty in reconciling. The husband supported his family to a very high level during the relationship and has continued to support his children to this high level post-separation given the wife has re-partnered.
The husband agreed to the wife living in Country L prior to separation and financially supported these living arrangements. I accept the wife’s case that the husband minimised the impact upon her when he failed to pay school fees on time, for example, resulting in letters from the children’s school being sent to her, threatening removal from the school. That he was late in paying rent at times on the property in Country L. That he failed to pay employed staff on time causing embarrassment for her and that she was, for a period of time in Country L, asking for many months for monies to be paid to her which should have been instantly forthcoming from the husband when he clearly had sufficient capital to do this. Annexed to the wife’s affidavit of 9 November 2020 and marked “E88” is letters between the parties on these issues.
There was also an issue about the husband agreeing to provide the wife $150,000 American dollars to start up a business in Country L which was never paid. The money was not paid as the wife did not commence the business however there is some truth to her assertion that the husband led her along for a period of time in 2017 that he would be paying her this money.
The family health insurance lapsed in June/July 2016 and June/July 2017 due to the husband’s non-payment. The wife says the husband had not paid part of the loan secured on the Suburb M property on 21 and 27 February 2017. That he left the wife in Country L without cash in April 2017. That he did not pay a speech therapist for C on time in October 2018. He did not pay the cost of the wife moving from Country L to Sydney in a timely fashion. The wife says these are matters that caused her concern and was unnecessary given the significant sums of cash he had in the bank at that time and that he should have paid these expenses in a timely fashion. I accept these complaints by the wife and that they caused her to be stressed and unsupported whilst caring for the parties’ three children.
However, all expenses were ultimately paid by the husband and I find that he will continue to maintain private health for the children, pay child support ordered, has paid private school fees up to second term 2021 and when he anticipates obtaining employment in about June/July 2021 will continue so to do.
Apart from the above lapses by the husband at the time the wife was in Country L, and as he said in evidence, “the relationship between us wasn’t really all that good, we were having difficulties”, the majority of the wife’s complaints about the husband went nowhere in terms of impacting upon my discretion in a property application.
The husband has a current assessment for child support of some $369 per month. The husband will pay $750 a week, some $1,600 more than he is assessed to pay monthly. The wife may think this is unfair and it is $400 a week less than Justice Rees ordered be paid. However the husband was, at the time of the hearing, without income and was using his redundancy monies and other payments received to support his children. He has obtained a position consulting for a company, W Inc., a US company where he is paid a fee of 10 per cent for sales to referred end-users and 5 per cent to referred resellers with his sale goals in Year One being a USD$750,000 and in Year Two, USD$1,500,000. His area of sales is in the Asia-Pacific region including China and Japan. He is yet to obtain full-time employment.
B is in boarding school and does not live with the wife 24/7, as he did at the time the orders were made by Rees J, and in light of these changed circumstances the position put by the husband is a generous, positive and child-focused position and would have behove the wife to have made that concession.
It is clear to me that the wife’s case is she should receive a share of the husband’s post-separation income to pay for her expenses by way of a property settlement as was the case pre-separation and prior to her move to Australia from Country L and having re-partnered. I will adopt the position put to me by Mr Longworth in part and Mr Lethbridge SC that all the husband’s assets are to be included in the pool which necessarily includes monies the husband has accrued post-separation including shares and his savings.
Turning to the wife’s position. In relation to the capital sum realised from the sale of the unit, that capital sum was treated by Justice Rees as available to her for her support in circumstances where the husband had a capacity to pay her maintenance, see paragraph 16 of her Honour’s judgment, and the wife was not employed or re-partnered. It would be unfair now for me to characterise that capital sum as anything other than available to her to support herself as was the income the husband earned available to support himself including for the payment of legal fees and I will not add it back to the pool for division. However, if the wife has not spent all that capital for her support, including legal fees, and some funds still remain then, consistent with my decision to include money saved by the husband from his income in the pool, I will do so with funds in the wife’s hands.
Mr Longworth said there were four stages of the relationship: commencement of the relationship; living in Country F through to 2014 and when the wife moved to Country L; from 2017 when the wife moved to Australia; and currently. That may be correct however I am assessing the relationship as a whole and not breaking it up into parts for individual assessment. That Gabel & Yardley (2008) FLC 93-386 (“Gabel & Yardley”) is authority for the proposition that I have a wide discretion in these matters. That I should not have regard to the interim property distribution to the wife in my deliberations but only the funds that remain as that money was used by her to pay legal fees, whereas the husband has paid legal fees from his income.
I reject that submission in relation to the interim costs received by the wife and I will include the entirety of the $240,000 she ultimately received by way of an interim property distribution in the pool for division between the parties for the following reasons.
In Chorn &Hopkins (2004) FLC ¶93-204 (“Chorn & Hopkins”), the Full Court summarised earlier Full Court authorities on the issue and said (pp 79,322–3):
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.

Consistent with this authority I will add back all interim property distributions to the pool, however not the expended capital sum realised by the wife from the sale of her unit given its characterisation by Justice Rees. I will include in the pool all current monies saved by the parties in their bank accounts including item 6 on the balance sheet, the wife’s ANZ deposit of $129,405, being a combination of what remains of her unit sale proceeds and interim property distribution. I do not know what the breakup of these funds is as between the capital sum and interim property distribution. I will have regard to this difficulty in my decision as I do not want to visit an unfairness on the wife by doubling up in anyway given I am adding back to the pool the entirety of the funds she received by way of interim property distribution.
Lastly, I will take into account the fact that, unlike the wife, the husband was able to pay legal fees from his income in my determination as to the appropriate property adjustment.
I find this approach is the most appropriate course to achieve a just and equitable distribution of the assets now in the parties’ names given I accept entirely that the parties’ contributions, both during the relationship and post the relationship, are highly relevant to the ultimate exercise of my discretion as to their entitlement to their property.
It is now six years since separation and there has been a co-mingling of assets held at separation and those that are in existence today. As property proceedings are not mathematical or accounting exercises I have determined this is the approach which will result in the most just and equitable division of the parties property.
Having so determined I need not take account of the fact that matrimonial money was used to pay legal fees per se. However I accept the wife’s submission that the husband was able to pay his legal fees of $300,000 from income and this was not available to her to pay her fees of some $214,000 and I will have regard to this fact in my assessment of her entitlement pursuant to the factors under section 75(2) of the Act.
What is the pool for division? Having regard to the evidence I will now determine the assets on the current balance sheet that are included in the pool for division and those I will not, together with any add backs and the liabilities referable to those assets.

Current Balance Sheet

ASSETS
Ownership		Description		Wife/de facto partner/s value	Husband/de facto partner’s value
1	H	E Street, Country F		2,450,000	2,450,000
2	H	J Street Suburb K (Title held by Husband, his brother Mr R and Mr R’s wife Ms NN) Husband holds 1/3		520,000	520,000
4	W	ANZ Access …67		2,343	2,343
5	W	ANZ Online Saver #…04		10,757	10,757
6	W	ANZ Term Deposit (04.03.2020) Remainder of proceeds of sale of Suburb M property and partial property settlement payments of $200,000 per Order made 06.09.17 and $40,000 per Order made 22.05.17 - $179,435 but $35,000 being paid to trust of GBL		129,405
7	W	8/11^th interest in ANZ joint account #…61 with Mr T		7,742	7,742
10	H	Y Bank Z City USD Investment account …88 (aka investments account #…80)		280,700	280,700
11	H	Y Bank Z City USD bank account …88		16,738	16,738
12	H	Y Bank Z City HK$ bank account …88		2,847	2,847
13	H	13A: BG Bank Country F …47 Current Account This account initially had $296,301 being the account into which the husband’s redundancy was paid. He has used the monies from that account to pay upfront the boarding fees for B and school fees for C until the end of Term 2 2021.		155,495	155,495
13	H	13B: BG Bank Country F …04 This money the husband has earmarked for payment of the child maintenance. The husband has agreed to pay $750 in child support and other expenses necessary to support the children. The wife asserts that I should include those monies as a matrimonial asset and the husband asserts this money is a financial resource.		74,859	NIL
14	H	14A GG Bank account S1 current account ending …57 14B GG Bank term deposit which included net proceeds of Suburb H $324,437 plus interest and additional post-separation earnings		371,844	371,844
15	H	Commonwealth Bank direct investment …82		8,746	8,746
16	W	KK Company 3,000 ordinary share @ $3.07		9,210	9,210
17	H	ZZ Business Stock Plan BF Company Participant Number …06 Husband – 12,855 vested stock units as at 14/6/20 Shares listed on stock exchange NIL at separation Husband confirms 12,855 vested stock units 14/06/20 exchange rate US$35.46 at 02/02/21		597,718	597,718
18	H	942 shares in ZZ Business vested on 31 December 2020, calculated at an exchange rate of USD$33.09 as at 28 January 2021		43,800	43,800
19	H	W – 1,056 shares in ZZ Business Vest dates: 316 shares on 8 February 2021, 44 shares on 12 February 2021) and		$27,945 (as per the Joint Letter sent to the Court dated 18 May 2021)	$27,945 (as per the Joint Letter sent to the Court dated 18 May 2021)
		296 shares in 1 January 2022		13,763	NIL
		H – H Affidavit 28/01/21 paragraph 7 potential to receive further 760 & 296, not assured, dependent on company performance & share price at vesting on 8/2/21, 12/2/21 & 1/1/22			NIL
20	H	1,172 AX Company shares @ $5.20		5,684	5,684
21	H	800 KK Company Shares @ $3.07		2,536	2,536
22	H	3,436 ordinary shares in XX Company		NK	NIL
24	W	Loan to PP Proprietary Limited (31/10/20)		2,037	2,037
25	W	30 of 100 ordinary shares in VV Pty Ltd		NK	NIL
26	W	30 of 100 ordinary shares in UU Proprietary Limited		NK	NIL
29	W	30 of 100 ordinary shares in AT Pty Limited		NK	NIL
30	Joint	Loan to SS Proprietary Limited $301,560.75		NK	NIL
31	Joint	Loan to VV Pty Ltd $33,355		NK	NIL
32	H	AZ Investment Account		3,884	3,884
33	H	AY Investments proceeds		0	24,000
34	H	AY Investments proceeds partial property settlement		0	40,000
35	H	Loan to brother, Mr AC (school fees)		32,000	28,000
38	H	Loan to Mr AD		57,300	57,300
39	H	Loan to Mr AF		27,350	25,350
40	H	Loan to Mr AG (19/10/2018)		5,000	5,000
41	W	Partial property settlement received by order 6/9/2017		0	200,000
43	W	Proceeds of sale of Suburb M property received by wife, nett		0	457,000
44	W	PP Proprietary Limited – Wife’s business		0	NIL
45	W	Loan accounts with BN Company		0	NK
46	W	Loan accounts with other companies		0	NK
47	W	Motor Vehicle 1		27,500	27,500
48	H	Funds in Keypoint trust account		49,000	49,000
49	W	Funds in GBL trust account		60,314	60,314
49a	H	Bonus payments January, February 2021 (EST)		55,369	55,369
TOTAL				$5,056,667	$5,520,664
ADDBACKS
Ownership		Description		Wife/de facto partner/s value	Husband/de facto partner’s value
50	H	Rent received from Mr and Ms BD for E Street Property – sub-paragraph 155.2 of wife’s trial affidavit - $74,000		0	NIL
51	H	Rent received from Mr & Ms BF for E Street Property – sub-paragraph 155.3 of wife’s trial affidavit - $7,000		NIL
52	H	2/3 of the actual Suburb K Property mortgage payments less payments made by Mr R and Ms NN $111,861 (assuming 3% interest sum would be $115,318		0	NIL or -9,796
53	H	Husband’s brother and sister-in-law have paid no rent since 1 July 2007 per husband’s tax returns. Rate of rent per Husband’s 2005 tax return was $695 per week 1/3 being $231.67 per week. 709 weeks from 1 July 2007 to 31 July 2021 = $164,254 paragraph 81 of wife’s trial affidavit (assuming 3% interest sum would be $115,318)		0	NIL
54	H	Cash withdrawals from BG Bank account #…47 from June 2015 to May 2020 $261,695		0	NIL
55	H	Lump sum transfers from BG Bank account #…47 from June 2015 to date where destination account is not known/page 130 of H’s affidavit filed 19.12.20		0	NIL
56	H	Profit on Suburb X property investment with Mr R– paragraph 85 of wife’s trial affidavit $110,000 (assuming 3% interest would be $152,266) – paragraph 85 of wife’s trial affidavit		0	NIL
57	H	Legal fees paid		302,022	Not relevant
58	W	Legal fees paid		214,763	Not relevant
TOTAL				$516,785	$0
LIABILITIES
Ownership		Description		Wife/de facto partner/s value	Husband/de facto partner’s value
59	Joint	Q Bank Loan #…01 (Country F property) S$1,449,217		-1,420,233	1,420,233
60	Joint	Q Bank Loan #…02 (re. Suburb K property) (security includes guarantee of Wife) S$858,363 Husband: 1/3^rd = S$286,121		-280,399	280,399
61	H	61A Country F tax liability income tax on 2020 income H Affidavit 28/01/2021 paragraph 8(b) 61B Country F tax liability income tax on 2021 income H Affidavit 28/01/21 paragraph 8(c) – not known		0	110,858 & NK
62	H	ZZ Business shares – capital/income tax on unvested shares which vested on H’s redundancy H Affidavit 28/01/21 paragraphs 7 & 8		-70,622	70,622
63	W	Credit Card 1		0	NIL
64	W	Tax liability		0	NIL
TOTAL				$-1,771,254	$1,882,112
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner/s value	Husband/de facto partner’s value
66	W	AM Super Fund Account Number …60	Accumulation	103,722	103,722
67	H	AP Super Fund Country F	Overseas	429,761	429,761
68	H	AR Fund (H: at 28/01/21)	Accumulation	96,446	96,446
TOTAL				$629,929	$629,929

Items 1 to 5 are included in the pool as matrimonial assets.
Item 6, $129,405, is to be included in the pool.
I will include item 7 on the balance sheet being the wife’s share of a joint account with herself and Mr T.
Item 10, $280,700, being the husband’s Y Bank Z City investment account ending … 88, item 11, $16,738, being the husband’s Y Bank USD Z City bank account ending …88, item 12, $2,847, being the husband’s Y Bank Z City HK$ account ending … 88 and item 13, $155,495 remaining from the husband’s redundancy are included in the pool.
I will exclude from the balance sheet item 13B being the sum of $74,859 which is money the husband has set aside from his redundancy payment to pay expenses for the children to July 2021 and I accept that this is what this money will be used for given his unemployment.
Item 14, $371,844, being the net proceeds of sale of the husband’s property at Suburb H ($324,437) which fund has increased from interest and post-separation savings is included in the pool.
Item 15, Commonwealth Bank direct investment in the husband’s name of $8,746, is included in the pool.
Item 16, 3,000 ordinary KK Company shares worth $9,210 in the wife’s name, is included the pool.
Item 17, the husband’s ZZ Business stock plan including 12,855 vested stock units as at 14 June 2020 at a US exchange rate of $35.46, with a value of $597,718, is included in the pool noting tax is to be paid of an unknown amount.
Item 18, Husband’s 942 RSU shares at an exchange rate of US$33.09, total $43,800, are included in the pool noting that tax is to be paid of an unknown amount.
Item 19, 296 future shares to be vested on 1 January 2022, a sum of $13,763, and 601 shares vested on 8 and 12 February 2021 totalling $27,945, owned by the husband, are to be included in the pool noting tax to be paid of an unknown amount.
Item 20, husband’s 1,172 AX Company shares valued at $5,684 to be included in the pool.
Item 21, husband’s 800 KK Company shares valued at $2,536 to be included in the pool.
Item 24, I will not have regard to the loan the wife has to her company of $2,037. In the scheme of things this is a modest sum.
Items 25 to 31 relate to shares in the failed business enterprises with the husband’s brother and his former wife and I will exclude these items from the balance sheet.
Item 32, the husband’s AZ Investment Account of $3,884 to be included in the pool.
Item 33 is included in the pool.
Item 34 is not included in the pool as that sum has been included at item 6.
Items 35, the loan to the husband’s brother Mr AC of $32,000, item 38, the loan to Mr AD of $57,300, item 39, the loan to Mr AF of $27,350 and item 40, the loan to Mr AG of $5,000 to be included in the pool.
Item 41 will be included in the pool at $240,000 being the interim property settlement received by the wife.
Item 43, $447,000, being the nett proceeds of sale of the wife’s property at Suburb M is not to be included in the pool.
Items 44 to 46 are not included in the pool as there is little, if any, value attached to these items.
Item 47, the wife’s car at $27,500 is included in the pool.
Item 48, $49,000 in the husband’s lawyers trust account, to be included in the pool.
Item 49, $60,314 in the wife’s lawyers trust account, will be included in the pool.
Item 49a, $55,369, bonus payments January and February 2021 to be included in the pool.
Total: $5,238,990.

Addbacks

I will not have regard to the addbacks asserted by the wife in this matter given I have included as matrimonial assets interim property distribution, the proceeds of sale of property owned by the husband post-separation, monies saved by the husband from his income, monies remaining in the wife’s ANZ term account and other bank accounts together with shares vested in the husband from his employment post-separation. I note that the husband has paid $302,022 from income by way of legal fees and the wife $214,763 in legal fees from the interim property distribution and/or the proceeds of sale of her property.
I reject the wife’s argument that the husband must account to her for rent received from the Country F property given that the husband has fully maintained that property without any financial assistance from the wife post-separation. Further the majority of rent received by him was during the time the wife and children lived in Country L when he was fully maintaining his family at a very high level in Country L together with maintaining the home in Country F.
I accept the agreement the husband and his brother had in relation to the Suburb K property and that the husband’s brother and his wife would not pay rent given they were paying outgoings on the property such as rates and maintaining and renovating the property. I reject the wife’s argument that I should include some notional rent that could have been received as a matrimonial asset.
The husband never had an interest in his brother’s property at Suburb X and I reject that addback as well.

Liabilities

Q Bank mortgage in relation to the Country F property at $1,420,233.
Q Bank mortgage in respect of the Suburb K property, the husband’s share at $280,399.
I note that the wife is a co-guarantor with the husband of the Q Bank Loan and that includes the totality of the Suburb K loan of $858,363 and the husband acknowledges he must discharge the wife’s obligation as a guarantor over both properties otherwise the Country F property will need to be sold to discharge this liability.
The husband will have tax payable on share transfers and vesting. That is an amount unknown at this time. The husband asserts tax on the ZZ Business shares vested or to be vested on his redundancy may total $70,622. This figure has not been crystallised, however it is clearly a liability for the future in relation to assets the wife seeks a share of. I will allow this sum however any additional tax will fall to be paid by the husband.
Total liabilities: $1,771,254.
Giving a net liquid asset position of $3,467,736.
The husband is seized of some $500,000 in super and the wife $103,000. Neither party sought a super splitting order. I will have regard to the significant difference in the superannuation in my determination and that it is unlikely the wife will ever earn income the husband has into the future and this difference may continue.

The Law

It is just and equitable and appropriate having regard to the principles enunciated in Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2014) FLC 93-572 that I embark upon a division of the parties’ property pursuant to section 79 of the Act.
Following the well-known principles enunciated in Ferraro & Ferraro (1993) FLC 92-335, Pierce & Pierce (1999) FLC 92-844 and Coghlan & Coghlan (2005) FLC 93-220, I must engage in a four stage approach which is to:
i)Identify the matrimonial pool and its value;
ii)Assess the parties’ contribution based entitlement expressed as a percentage for their past contribution to their property both directly of a financial nature, indirectly by energy, effort and/or third party contribution and as parent and homemaker;
iii)Determine whether there ought to be a further adjustment to either party’s contribution based entitlement for their past contributions having regard to their future needs;
iv)Look back at the orders proposed to be made and determine if they result in a just and equitable division of the parties’ assets.
The law is clear. I am tasked to determine a proper adjustment of the parties’ assets having regard to their past contribution to their current assets including as a parent and homemaker, be that pre or post-separation, and then determine whether that adjustment should be further varied to take account of each party’s future needs and matters such as their income, income earning capacity and care of the children.
In so doing I must have regard to their contributions to the marriage and children pre, during and post the relationship, being both direct and indirect financial contributions and contributions as a parent and homemaker, see section 79 of the Act. Then, determine whether my assessment of their contribution-based entitlement, expressed as a percentage of the pool of assets, ought to be adjusted to take account of their future needs, see section 75(2) of the Act.
The situation of the wife, her former husband and her children has significantly changed since her return to Australia. The wife made no direct contribution to the husband in the earning of his income and working at the level he does since she and he physically separated. Her contribution has been as a parent almost solely to the children and she has carried that out to a high level. The wife was shocked when it was put to her that she had a responsibility, as did the husband, to pay towards the needs of her children.
The husband is proposing to pay the wife, by way of child maintenance, $3,000 a month in circumstances where B is a five-day-a-week boarder coming home on the weekend only and his assessment is less than $400 a month. The husband is willing and able, at this present time, to spend time with the children on the weekend and during the week as he is not working and is living in Australia, a novel situation for the husband and the children which will benefit them all. This will give the wife respite from the sole parenting she has hitherto been responsible for.
Going to the parties’ direct financial contributions to their assets.
In relation to the purchase of the Country F property, the husband sold a property in Suburb JJ he had purchased in 2002 for $425,000 prior to the relationship. He sold the property for $485,000 and received $143,000 net of tax from that sale which used towards the purchase of the Country F property.
The wife agrees with the following:
a)In 2004 the wife had $6,000 in the bank and the husband had $80,000;
b)That the parties dealt with and maintained their own properties, had their own bank accounts and independent jobs when they met in August 2005;
c)That they did not open a joint account in Country F in 2006.
The wife maintained that she had put her career on hold in Sydney to live with the husband in Asia. However there was evidence tendered to the contrary. There is a letter in her annexures page 136 to AV Company, saying:
I am working here on contract as it is a fantastic job [referring to her employment with MM Company], almost a dream job, but I cannot commit to this role full time while my partner is commited [sic] to Country F…I would be happy to meet this week to discuss Country F opportunities, if you could meet down this way for a coffee…?

The wife sent an email to Mr AW on 26 May 2005. He had offered her a job and her email advises, inter-alia, that she declined a position in Sydney as she believed there were opportunities for her as professional in Asia consulting, which was clearly her skill set. The wife says that email which supports her position that she chose to stay in Country F and put her further studies for a degree on hold because of the husband. The letter, sent 26 May 2005 and attached to the wife’s affidavit of 9 November 2020 at page 139 of the exhibits tells a different story and is as follows:
…you keep trying to talk me out of it…but deep down you want me to come home and take the job…today is my last day of work and I cannot contemplate a lady of leisure lifestyle and I am dying to get into something different…contemplating a lot of things at the moment in all seriousness and one of them is coming home, focusing on me and my career…
Although I do not accept that the only reason the wife chose to stay in Country F and not take up a job offer in Sydney was due to their relationship, there is no doubt the care of three children, when their father has a high powered job and is travelling extensively, requires almost total devotion by the other parent leaving little room for a high powered job as well, even if you are well qualified to carry out such a position as was the wife and no doubt still is.
The wife wound up Eakins Consultants in June 2013 and she now conducts her work through PP Proprietary Limited, and she owns 100 per cent of that company. The wife agreed she had assistance in Country F and Country L to care for the family, and that the husband provided for the wife and children until his first redundancy in 2008. The facts are he provided for his family up to late 2017 and has continued to provide for his children.
In 2008 he was made redundant and received an extraordinary bonus of USD$670,000 which was placed into a joint account, the first joint account the parties had. The wife agreed this course was adopted in 2010 due to financial advice and the wife agreed she had been present when this arrangement had been discussed in 2008 at the time of his redundancy.
The wife was quite churlish in relation to the husband’s commitment to the children and the family. At paragraph 97 of her affidavit filed 9 November 2020 she says this:
Although Mr Higgins did not work during most of 2011 and limited consultancy work in 2012 it was not the case that he commenced to care for B and C…Mr Higgins generally slept in till 11am most days and when up he generally watched TV or attended to his own interests including socialising without the children and me. Mr Higgins certainly seemed to enjoy engaging in [activities] with the children but, for example, if we wanted to take them swimming I dressed them in their swimmers and packed the baby bag, often even taking them down to the pool for him. After they had been in the pool I often showered and dressed them in clean dry clothes.
At paragraph 101:
Prior to our separation in June 2015, Mr Higgins generally came to Country L every second weekend for the weekend or he came less frequently…He almost always worked [in Country L] joining the children and I for some activities…Although we had 6 helpers at our rented house, the nature of the needs of the children was such that they still required my care.
I accept the children required their mother’s care at this time and continuing however she enjoyed, properly, a generous level of financial support during the relationship which continued post-separation up to 2017 when the wife came to Australia at the end of 2017.
At paragraph 109:
Whilst we were in Country L I did the best I could to make the children available to Mr Higgins but I did not feel I could rely on him. For example…during the period 18 to 22 June 2015 I was hospitalised for Dengue Fever
. Mr Higgins left Country L…
The husband left for his work, and he organised for the wife’s parents to look after them.
109.2. On 10 July, being an occasion Mr Higgins had agreed to take the children for two weeks of the holidays, he instead left Country L and the children remained with me and I had chicken pox…
These are exigencies that happen to all couples when parents are required to work to provide for their family and still have a caring role for their children. The husband was the only parent able to work at this time and the wife did not acknowledge the commitment the husband would have been required to make to his work to earn the income he did and provide the lifestyle his family was enjoying.
This is a cost the family paid to enable the husband to maintain a high powered job earning $10,000 a week together with accumulating share bonuses. The wife’s criticisms of the husband turning up late, not caring for the children in February, March in 2016/2017, failing to attend the family holiday which the children and wife enjoyed put the wife and not the husband in a poor light. The wife’s expectations of the husband’s availability to assist her in parenting the children were unrealistic given the demands of his job and the frequent travel it involved.

The wife’s financial statement

The wife asserts her income is $2,893 a week consisting of her work as a professional, PP Proprietary Limited; JobKeeper and for BN Company, together with the $1,150 paid by way of child support by the husband and some interest in monies in the bank. Her expenses are $4,193. The wife is clearly living beyond her means and is using capital to fund this deficit. The wife abandoned her claim for over $1 million in lump sum child support at the commencement of the trial, however is maintaining a position that the husband ought to fund the lifestyle the wife wants to live whether that lifestyle choice is reasonable or not.
The fact the wife earns $2,893 weekly but spends $4,193 weekly and has a deficit of income over expenditure of $1,300 a week does not necessarily satisfy me that, having regard to the factors under section 75(2) of the Act, the husband should make up that difference by way of a property order or that she is unable to support herself reasonably or adequately particularly now she has re-partnered.
There is no application for spouse maintenance and I note that Justice Rees dismissed the wife’s application for spouse maintenance in 2017 prior to her re-partnering. However, the wife asserts a deficit of income to meet reasonable expenses as part of her property application, consistent with the factors under section 75(2) of the Act which factors are also relevant to a maintenance application.
At the hearing the wife was asked:
You’re living beyond your means?
The wife answered:
I think the husband should contribute to the children’s expenses and mine while I look after his children.
The fallacy of that argument is two-fold. First, the wife has re-partnered and secondly the wife also has an obligation to provide for her children as they are also her children.
This attitude, “I think the husband should contribute to the children’s expenses and mine while I look after his children” permeated the wife’s material, the submissions, and questions asked of the husband. The wife said, when being asked about items on the first balance sheet, for example item 55 on Court exhibit 1 being the sum of $146,000 she asserted was unexplained expenditure by the husband, that he should explain what he spent his money on. That is not the law nor did the wife do this either. Her answer to questions concerning expenditure by her of her income and available money post-separation was in the vein that as she was caring for the children, “what I do with my money is okay because I am caring for the children”.
The wife asserts her discretionary expenses for food and household supplies for herself and her children is $844 a week. Clothing and shoes, $231. Activities including entertainment, $169. Medical, dental and optical, $304 although the husband pays private health insurance. Travel/holidays, $308. Education expenses, $123, although the husband pays for the children’s education expenses. Cleaning of the home, $109.
Mere recitation in your financial statement that you are expending more than you earn does not necessarily satisfy a Court you cannot support yourself adequately within the meaning of the Act. I accept entirely that the husband has and has always had a much higher income, has currently a higher income earning capacity and that is more likely than not to continue into the future despite his redundancy. This means it is more likely than not he will always be able to support himself to a higher level and standard than the wife will by reason that the wife has put on hold her career due to her care of the three children of the marriage which has had a negative impact on her income earning capacity.
I must have regard to the wife’s financial circumstances also and not only the husband’s. At present Mr T consults with BK Company and other hospitality industries. He is assisting BK Company to tender for a new business at BL Location. Mr T received a $5,000 single service fee for that work and if this Group is successful in their tender, he will receive a further $10,000. He has provided some management services in relation to Ms Eakins’s employment and has invoiced that company $3,200. Mr T was shortlisted for a position paying $190,000 per annum exclusive of superannuation with V Company however was unsuccessful. Mr T has a 0.25 percent interest in a company, being 25 per cent of one share based in Country CR. He used $17,500 of his own savings towards this company. The other 75 per cent of that one share is owned by Mr BG, who is an old friend. The Company has been trading for 18 months The Company is owned as to 75 per cent by Mr CF. Mr T must be a potential financial resource to the wife on these facts.
Mr Longworth asserted the husband had not been forthcoming with financial disclosure when the reverse was the case. He has been forthcoming and provided information when he received it, such as on the last day of the trial when he disclosed important information about yet another amount of money to be paid to him by ZZ Business, item 49a on the balance sheet, a bonus payment of some $55,000. He was a witness of truth and, like the wife, he gave his answers honestly.
Mr Longworth was clear I should accept that the husband will earn a similar income to that which he earned in Country F wherever he gets a job. I do not accept that submission but agree he is more likely than not to obtain employment at a substantial remuneration into the future as he has in the past.
Similarly this ratio applies to Mr T, the wife’s partner. He was shortlisted for a position at remuneration of $190,000 per annum. His last job was $150,000 per annum, and he was afforded free accommodation. He, too, has a track history of work in Australia. He, too, has a track history of earning a good income, although not at the level of the husband.
In these circumstances I find Mr T is a financial resource to the wife and that she and he are able to meet, from their own resources, their expenses. However I will take into account that the wife virtually solely cares for the children of the marriage and that this interferes with her capacity to generate a greater income than she has in the past and currently does.
The husband agrees if he is to retain the Country F property he must have his wife released as a guarantor on that property as well as the Suburb K property. If he cannot, he will sell the property.
The husband agreed until he was made redundant he had about an excess of $2,300 per week of income over expenses. It was put to him that when he read the wife’s financial statement, he must have agreed she was struggling to pay her outgoings. The fallacy with that argument is that these are outgoings she has chosen to pay and I have not analysed what costs are necessary or reasonable. The wife told me what she has chosen to pay and the life she has chosen to lead, including the cost of the property she rents, the holidays she says she needs, having a cleaner etcetera and these are matters for her. The reality is the wife earns $95,000 a year working part time and Mr T has the potential to earn an income approaching $190,000 per year. Additionally, the wife was receiving $1,150 weekly for support of the children with the husband paying all the private school fees.
The husband and wife want the children to attend private school and the husband acknowledged that the wife cannot afford this expense and that this will fall to him. That he will pay these fees provided he obtains a job with sufficient income in Australia. The husband is cognisant of the fact that although he wants to stay in Australia, any job he obtains may take him overseas. He said:
I’m confident I’ll get a job in Australia. Not sure about the income.
That is a fair, open and honest answer. I note he has not been successful as at May 2021 in obtaining a job in Australia and that he has obtained contract work with an American company in the Asia-Pacific region.
The husband did not agree he had been unreliable in supporting the wife in Country L, but it is clear he had, when one looks at paragraphs 155.6-155.13 of the wife’s affidavit of 9 November 2020. Not all the time, not every time, and not significantly, but sufficiently to cause the wife to be concerned. I accept she was embarrassed and at times worried about how she was going to obtain money to support herself and the children. He was at best tardy, at worst neglectful at times. When asked about her letter of 21 April 2017, annexed to the wife’s affidavit and marked “E89”, in which she told him she didn’t have enough money to support the boys, the husband said, “I believe she did”. Perhaps this is where one of the problems arises. For it is clear the wife will spend what she believes she should spend, no matter her financial circumstances. However the wife’s evidence from paragraph 155.6 through to 155.13 of her affidavit of 9 November 2020 does indicate there were times in Country L when she was left “high and dry” by the husband.
The husband was cross-examined on his failure to top up the lunch fund at the boys’ school and that they went without lunch. It was clear from reading the documents annexed to the wife’s affidavit filed 9 November 2020 and marked “E91”, that lunch is ordered a week in advance. The wife could have topped up the account and asked the husband to reimburse her. The children did not go without lunch and, if they did, that was as a consequence of her decision, not his.
Under instructions, Mr Longworth endeavoured to make criticism of the husband initially paying child maintenance from the proceeds of sale of Suburb H.
I was unaware that the law required parties to maintain an exact dollar amount in an account from the sale of a capital asset. The wife did not. The husband put the money from the Suburb H property into an account, and that account has increased by $30,000. Thus the submission fails.
When this was put to Mr Longworth he said, well, he only did it after a solicitor’s letter. A solicitor’s letter is not a legal obligation and even if the husband had not done this, it would have mattered not a fig as these proceeds of sale, as with the proceeds of sale of the wife’s property, were known to the parties and will be taken into account in my determination as will the husband’s post-separation savings.
Mr Longworth asserted that the husband should have used his brought-forward tax losses from other business ventures to minimise capital gains tax he had to pay on the Suburb H sale. There is no expert evidence available regarding whether this be possible for a non-resident as he was at that time. Mr Longworth was referring to losses incurred by the failed business venture with his brother. However those companies are still operating, have not been wound up, and the husband’s brother’s evidence was clear: the wife did not want to expend any more money in winding them up, and she was correct.
The honourable nature of the husband and his brother Mr R became clear. The husband found out from reading the wife’s material that when the business of UU Proprietary Limited was sold to Mr AB for $100, the wife’s shares had inadvertently been transferred to him as well, and the wife had not consented to this happening. His evidence was he contacted his brother, who was Mr AB’s friend, and asked him to remedy this error. His brother then contacted Mr AB and the shares were transferred to the wife. The husband’s brother’s evidence was consistent with the husband’s evidence on these transactions.
The husband’s brother said he and the wife discussed at great length what they would do with these failed businesses, and that the wife was adamant she did not want any more money to be put into the failed venture, understandably, and that she would transfer her shares to a purchaser if he could get one. Mr R said he sent all the necessary documentation to the wife for her to transfer her shares upon this sale, but apparently it was not received or returned by her. He was clear that Mr AB’s accountant improperly transferred the wife’s shares to his client when the company was transferred to his client. When Mr R was alerted to this error by his brother he immediately contacted Mr AB and the shares were re-transferred.
Mr R said:
I had Ms Eakins’s permission to transfer the 30 shares of UU Proprietary Limited to Mr AB, and I thought the documents were sent to her to sign. She and I knew about that transaction of the shares to Mr AB…I asked Mr AB why he had moved shares [without receiving Ms Eakins’s signed share transfer]…and that they ought to be transferred back [to Ms Eakins]…And I confirmed that Mr AB’s accountant had made the transfer.
He also said:
The shares were transferred with her consent. [Her] instructions were really clear, “I am not paying for the wind up of that company, you do anything you can as long as it doesn’t cost us any more money.”…we had multiple conversations [about this].
It is clear the wife had wiped her hands of these companies when they failed, and understandably so as she had two young children to care for, a husband who was jetting all around the world in a high-powered, stressful job. However to then make complaint about shares being transferred without her knowledge or consent and seek to lay the blame for same at her husband’s feet is not accepted by me given the discussions she had with Mr R. Further, the wife’s argument that the husband or his brother were responsible for this error is also rejected by me and I accept their explanation of these events.
The wife alleges that the husband, and thus she, has an interest in the brother’s Suburb X property as he lent his brother money to purchase the property initially. I reject the wife’s version of events and accept entirely the husband’s evidence that he has been repaid the principal sum he lent his brother for repairs and/or maintenance of the Suburb X property sometime after it had been purchased by his brother in 1999. I reject entirely the wife’s argument that she and her husband made a profit of $110,000 in relation to this property for the following reasons.
Siblings assisting each other is often the case particularly where, as here, Mr R was struggling in 2007-2008, and the husband was earning significant income. It is not surprising the husband assisted him with a loan that I accept has been repaid.
The wife relied upon a bank statement at page 231 and 232 of her exhibits to her affidavit of 9 November 2020 which had handwriting thereon with words such as “equity, J Street” to support her argument of a greater interest in the Suburb K property at J Street than the husband asserted. Mr R agreed this was his handwriting, that he handed the statement to the wife at about the time it was created in March 2007 and then said:
I would simply be tracking the movement of equity between Mr Higgins and myself in an effort to fully disclose to a new member and part of the planning team as to what we were doing and why we were doing it.

The wife was the new member of the Team and family. Mr R and his wife had been together for some time, and Mr R wanted her to know the extent of their inter-financial dealings.
I reject the wife’s assertions as to any interest of her or her husband in the brother’s property at Suburb X and note she agreed at the trial that her husband owned one third of the J Street property.

Orders sought

The wife seeks 67.5 per cent of the assets.
The wife accepts the husband paying $750 a week in child support in lieu of the current $1,150, and I will discharge that order and note it is no longer valid given the husband lives in Australia. A Child Support Assessment has issued in respect of the husband’s obligation and it is now $369 a month, husband’s exhibit 2. I will ensure by order that the amount he agrees to pay the wife is offset against his child support obligation to ensure no debt accrues.
Consistent with authorities such as Chorn &Hopkins and Gabel & Yardley I have taken a broad approach in the exercise of my discretion and have added interim property distributions to the pool, included each parties’ post-separation savings in the pool and will take into account the fact the husband was able to pay legal fees from his income in my determination as to the appropriate property adjustment.
I accept the wife’s career path has been negatively impacted upon by her care and control of the parties’ three children. This is a significant factor in my determination. I take into account that the husband has always been a high income earner and that this is more likely than not to continue into the future. During the marriage and post-separation he supported his family to a very high standard and has been able to acquire and accumulate significant savings due to his work and his capacity in that work. I take into account that since 2015 the wife has not supported him personally in his work, rather her support and contribution has been by caring for their children allowing him to continue to work at the level he does and generate the income he has. The husband has paid child support from his income and not a capital source and I reject any submission to the contrary.
The wife asserts her contribution-based entitlement to the assets is 52.5 per cent due to her care of the children. I reject that submission. The husband was in a superior financial position to the wife at the commencement of cohabitation. He had equity in Suburb JJ, he had $80,000 saving in the bank. He was earning a higher income. The parties acquired assets during their relationship, and the wife contributed to the acquisition of those assets by supporting her husband in his work and caring for their children to a high level.
Post-separation, however, it has been the husband’s work and his capacity at that work, not supported by the wife as he had been when they were living together, that has resulted in his post-separation savings and additional shares boosting their asset base together with an increase in the value of the Country F home, a home fully maintained by the husband post-separation, such that their asset base today is almost twice what it was when the parties separated in 2015.
In those circumstances I find that the husband has made a greater direct financial contribution to the assets of the parties, and that the wife’s contribution of caring for the parties’ children during the relationship and post-separation, although significant and important, does not result in a 52.5 per cent contribution-based entitlement to her.
I assess the parties’ contribution-based entitlement during the relationship and post the relationship to be 47 per cent to the wife and 53 per cent to the husband.
Going now to the parties’ needs. I accept the husband will always support his children to the best of his ability. It is uncertain what his income will be however he is confident he will obtain a position with a reasonable salary. The wife is now in a position to support herself, has re-partnered and her partner’s evidence was he was shortlisted for a position paying $190,000 per annum. In those circumstances the wife is able to support herself from her income and has a financial resource in her partner.
The wife does have the sole care of the three children. They are young. Any job the husband obtains may require extensive travel given that Asia is really where he has spent most of his working life. I accept the bulk of the day-to-day care of the children will fall to the wife, minimising her capacity to earn income, and she will never earn an income to the level of the husband.
In those circumstances I find, contrary to Mr Lethbridge SC’s submissions, the wife does have needs under section 75(2) of the Act, due to her care of the children and, having regard to section 75(2) and in particular 75(2)(o), being any other factor that is relevant which are as follows:
a)The wife’s income will never approach that of the husband as she did put her career on hold to support him;
b)That the husband has nearly half a million dollars in superannuation and her entitlement is $100,000 and this disparity may continue into the future;
c)That he was able to pay his legal fees of $300,000 from his income;
d)That some portion of $129,405 I have added back to the pool may have been money Justice Rees characterised as available to the wife for her support; and
e)I do not see the husband has any relevant 75(2) factors despite his redundancy as I too am confident he will be re-employed in the near future.
In those circumstances I assess her needs into the future to be 15 per cent. This results in a distribution of 62 per cent of the assets to the wife and the husband 38 per cent. The net pool for division is $3,467,736.
62 per cent of that equity is $2,149,996 and 38 per cent is $1,317,740. I note the husband will receive this money by way of cash assets and property whereas the distribution to the wife must be reduced by assets in her hands as follows:
The wife is seized of the following assets:
a)$240,000 interim property settlement;
b)$129,405 ANZ term deposit;
c)$2,343 ANZ access account;
d)$10,757 ANZ Online Saver account;
e)$9,210 in ordinary KK Company shares;
f)Motor Vehicle 1, $27,500;
g)Account with Mr T, $7,742;
h)Funds in lawyers trust account, $60,314.
Total: $487,271.
$2,149,996 less $487,271 is a payment to the wife of $1,662,725 and to the husband $1,317,740. I find the orders I propose to make to effect this determination result in a just and equitable division of their property.
If the husband wishes to retain the Country F property he is to pay the wife $1,662,725 and have her discharged as guarantor in respect of the Q Bank Loan over the Country F and Suburb K properties. The husband has 120 days from the date of delivery of these orders to pay the wife this sum otherwise the home in Country F is to be placed on the market for sale with the wife to receive $1,662,725 upon the sale with interest to accrue on that sum calculated from 120 days after the date of this judgment.
Thereafter all assets in either party’s name is to be theirs absolutely.

I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 21 May 2021.

Associate:

Date: 21 May 2021

[2021] FamCA 330

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Property Law

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Fiduciary Duty

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