Elgar and Elgar

[2012] FamCA 197

FAMILY COURT OF AUSTRALIA

ELGAR & ELGAR [2012] FamCA 197

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – where the parties had a long marriage – the husband was the income-earner – the wife was the home-maker and parent – wife made significant non-financial contributions – inheritances received by the wife were applied to joint expenses and for the benefit of the family – the husband spent extensive periods working overseas – whether there was non-disclosure by the husband in relation to property – whether the husband wasted joint funds – adjustments – spouse maintenance – application for lump sum spouse maintenance – where the wife currently receives periodic spouse maintenance pursuant to interim orders – whether husband has capacity to continue to meet periodic spouse maintenance payments.

Family Law Act 1975 (Cth) ss 75(2), 79(2) and 79(4)

Black & Kellner (1992) FLC 92-287
Coghlan & Coghlan (2005) FLC 93-220
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Kowaliw & Kowaliw (1981) FLC 91-092
Robb & Robb (1995) FLC 92-555
Weir & Weir (1993) FLC 92-338

APPLICANT: Ms Elgar

RESPONDENT: Mr Elgar

FILE NUMBER: CAC 1111 of 2010

DATE DELIVERED: 4 April 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11-13 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P O’Shannessy

SOLICITOR FOR THE APPLICANT: Farrar Gesini & Dunn

COUNSEL FOR THE RESPONDENT: Mr G Howard

SOLICITOR FOR THE RESPONDENT: Phelps Reid

Orders

1. The parties will do all such things as may be necessary to cause the transfer to the wife, at the wife’s expense:

   (a)all of their interest in the property described in Certificate of Title Reference 18513025, situated at Moololah, Lot 5, Registered Plan 851056, otherwise known as 17 Nunkeri Court, Forest Glen in Queensland (“the Forest Glen property”) together with the improvements thereon and subject to the mortgage in respect of the title thereto; and

   (b)all of their interest in the property described in Certificate of Title Volume 1084, Folio 63, Edition 2 situated at City Section 6, Block 2 on Deposited Plan 9666, Unit 233 on Unit Plan, otherwise known as 59/2 Edinburgh Street, Canberra City, in the Australian Capital Territory (“the Canberra City property”) subject to the mortgage in respect of the title thereto.

2. The wife will indemnify, and keep indemnified, the husband in respect of any outgoings in relation to the Forest Glen property, the Canberra City property or any liability in relation to the mortgages secured over those properties.

3. Upon completion of the sale of the property described in Certificate of Title Volume 1670, Folio 30, Edition 3 situated at Dickson Section 34, Block 3 on Deposited Plan 9438, Unit 60, otherwise known as Unit 60, 12 Challis Street, Dickson in the Australian Capital Territory (“the Dickson property”) the parties will cause the proceeds of sale of the Dickson property to be distributed as follows:

   (a)       To pay all costs, commissions and expenses of the sale;

   (b)       To pay the usual rates and adjustments;

   (c)To pay the amount required by the ANZ Bank to discharge mortgage registration number 1428981 (“the Dickson mortgage”) over the Dickson property;

   (d)To calculate what figure would represent 80 per cent of the net proceeds (after payment of the expenses referred to in orders 3(a) and (b) above) if the mortgage payout were $182,552 and to pay from the actual net proceeds that sum to the wife less the sum of $90,520 and $8,400 and to pay the balance thereafter to the husband. 

4. That a base amount of $49,000 is allocated, as required by s 90MT(4) of the Family Law Act 1975 to the wife out of the husband’s interest in the ANZ OneAnswer Personal Superannuation Fund.

5. That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:

   (a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)The husband’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband’s interest in the ANZ OneAnswer Personal Superannuation Fund is correspondingly reduced. 

6. That the trustee of the ANZ OneAnswer Personal Superannuation Fund (“the ANZ trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

   (a)Calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement created by Order 4 and 5 above; and

   (b)Pay the entitlement whenever a splittable payment becomes payable out of the husband’s interest in the ANZ OneAnswer Personal Superannuation Fund.

7. That Orders 4 and 5 have effect from the operative time and the operative time is six weeks after service of this Order upon the ANZ Trustee.

8. The trustee will need to be given 60 days notice and it will take effect after 60 days. 

9. Each of the parties will retain all other property or personalty in his or her possession or control including in the case of the wife her investment with Perpetual Investment Fund and her motor vehicle, and in the case of the husband his boat and his motor vehicles.

10. Except in respect of Orders 4 and 5 referred to above the parties will retain such interest as he or she may have respectively in their superannuation entitlements. 

11. The wife’s application for lump sum maintenance is dismissed.

12. The husband will pay to the wife, by way of spouse maintenance, a sum of $1,400.00 per week, such payments to be made monthly in advance.

13. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

14. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

15. The matter is removed from the pending cases list.Orders Style

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1111  of 2010

Ms Elgar

Applicant

And

Mr Elgar

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case about unfulfilled dreams, dashed expectations and, at the end of a long marriage in which both parties worked very hard, the exquisitely painful process of dividing relatively limited assets and relatively limited retirement income in such a way as to do justice to the contributions of the parties and their respective financial circumstances.

2. The pain to the parties in making this adjustment has not been assisted by my delay in delivery of these Reasons for Judgment and I apologise to the parties for that delay.

3. As will appear from the Reasons set out below, both parties worked very hard. The husband worked in responsible positions, usually overseas, and earned high income. This necessarily meant separation from his wife, an added burden for her as home-maker and parent and a frustration of any career aspirations she may have had.

4. Notwithstanding his responsible positions, the husband’s essays into part of business ventures were substantially unsuccessful. The wife was fortunate to receive substantial inheritances form her parents and family. These inheritances constitute a massive part of the asset base of the parties and need to be reflected appropriately. Sadly, for his part, although the husband earned substantial amounts of money from time to time, this is not translated into any substantial assets, or at least, such substantial assets as would reflect the money potentially available.

5. Final hearing of this matter took place in May 2011 and judgment was reserved. Subsequently, each party made an application to re-open the case, on different grounds, and another hearing transpired in February 2012.

6. At the time of final hearing, the wife sought the orders as set out in her Minute of Orders Sought. Those are still the orders she seeks after the hearing in February 2012. I summarise those orders here.

   a)In relation to the real estate, the wife seeks that both properties in Queensland (“the [Queensland] property”) and the Canberra suburb in the Australian Capital Territory (“the [Canberra Suburb] property”) be sold and the net proceeds of sale be paid to her. The wife also seeks that the husband transfer to her his interest in the property in Canberra City (“the Canberra City property”).

   b)The wife proposes that she transfer all her interest in Q Pty Ltd (“the Company”) to the husband.

   c)The husband pay to the wife $200,000 by way of lump sum spousal maintenance.

   d)In relation to superannuation, the husband has interests in two superannuation fund. One is the ANZ OneAnswer Personal Super Fund (“the ANZ super fund”) and the other is the AGEST Superannuation Fund (“the AGEST super fund”). The wife seeks that she be entitled to 100 per cent of each splittable payment out of the husband’s interests in both of those funds.

   e)The wife also sought orders in relation to other chattels.

7. In support of her application, the wife relied upon her affidavit and Financial Statement, both filed on 20 April 2011.

8. The husband sought the orders set out in his Minute of Orders Sought. Those are still the orders he seeks after the case was re-opened in February 2012. The orders the husband seeks are:

   a)The husband transfer to the wife his interests in the Queensland property and the Canberra Suburb property. The wife transfer to the husband all of her interest in the Canberra City property.

   b)The husband agrees that the wife should transfer to him all of her interest in the Company.

   c)In relation to superannuation, the husband proposes that the wife be allocated $49,000 as a base amount from his interest in the ANZ super fund, and that the wife be entitled to an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001.

   d)Orders concerning other chattels.

9. In support of his application, the husband relied upon his affidavit and Financial Statement, both filed on 20 April 2011, and a later affidavit affirmed on 24 February 2012 and filed in Court when the matter was re-opened on 28 February 2012.

Background facts

1. Both parties are currently aged 61 years.[1] They commenced cohabitation in mid 1981 and married in 1984. After about 28 years of marriage, the parties separated on a final basis on 23 December 2009.[2]

   [1] Wife’s affidavit, filed 20 April 2011, [2]; Husband’s affidavit, filed 20 April 2011, [2].

   [2] Wife’s affidavit, filed 20 April 2011, [4]; Husband’s affidavit, filed 20 April 2011, [4].

2. There are two children of the relationship, S who is currently 28 years old, and D who is currently 26 years old.[3] The wife also had a child from a previous relationship, C, who is 33 years old. When the parties commenced living together, C was about three years old.

   [3] Wife’s affidavit, filed 20 April 2011, [5].

3. At the commencement of the relationship, the parties lived in New Zealand. The wife owned a property at H Street, Christchurch and the husband owned a property at L Street, Christchurch. In 1981, when the parties commenced living together, each sold their respective properties and used the proceeds of sale to purchase their first home together at B Street, Christchurch.[4] The parties moved to Australia in late 1987.[5]

   [4] Wife’s affidavit, filed 20 April 2011,  [9]-[10]; Husband’s affidavit, filed 20 April 2011, [12].

   [5] Wife’s affidavit, filed 20 April 2011, [15]; Husband’s affidavit, filed 20 April 2011, [15].

4. At the commencement of the relationship the wife was a qualified teacher, however, she was not working because she was caring for C after the breakdown of her first marriage.[6] In 1982 the wife commenced part-time work as a teacher and this continued until 1984. During this period, the husband, who was also a teacher, was studying to obtain his PhD. He obtained his PhD in 1986.[7]

   [6] Wife’s affidavit, filed 20 April 2011, [13]; Husband’s affidavit, filed 20 April 2011, [13].

   [7] Wife’s affidavit, filed 20 April 2011, [14]; Husband’s affidavit, filed 20 April 2011, [14].

5. With the exception of a period while she was pregnant with D, the wife did not work from 1984 until 1987. During that period when she was pregnant with D, the wife worked part-time as a secretary a Hospital. Sometime during 1987, after D was born, the wife re-commenced working part-time as a teacher until the parties moved to Australia at the end of 1987.[8]

   [8] Wife’s affidavit, filed 20 April 2011, [15]; Husband’s affidavit, filed 20 April 2011, [15].

6. The wife did not work until 1992 when she started teaching in both primary and secondary schools on a relief basis. The wife claims that while it was relief teaching, she was required to teach for most of the working week. This employment ended in 1999 when the parties and their children relocated overseas for the husband’s work. The wife has not been in any significant paid employment since then.[9]

   [9] Wife’s affidavit, filed 20 April 2011, [16] and [17]; Husband’s affidavit, filed 20 April 2011, [16].

7. In contrast to the wife, the husband has worked full time in various positions throughout the parties’ marriage. However, there were some periods when the husband was not engaged in full time employment because he was looking for new contracts. There was a period of unemployment during 1992 after the husband was forced to resign by the Board of Directors from the A medical Foundation. There was also a period of unemployment in 2004 when the husband took a sabbatical from work to investigate property developments and vineyards in New Zealand.[10]

   [10] Wife’s affidavit, [19]; Husband’s earlier affidavit, [17].

8. For the majority of the parties’ relationship, the husband was employed in international development[11], and after 1991 that employment often took the husband overseas. At the time of cohabitation in 1981, the husband was completing his PhD and was working part-time in the medical Foundation Research Unit. In March 1984, the husband started working at a New Zealand health Advisory Council.[12]

   [11] Husband’s affidavit, filed 20 April 2011, [19].

   [12] Wife’s affidavit, filed 20 April 2011, [21].

9. When the parties moved to Australia, the husband commenced working for the B Foundation of Australia and this continued until late 1991. Following this, the husband was employed in a number of short term contracts, many of them overseas, and as a lecturer at a University.[13]

   [13] Wife’s affidavit, filed 20 April 2011, [22].

10. From September 1994 to December 1995, the husband was employed by an international aid organisation in the Philippines. He subsequently worked in Fiji in 1996 and 1997, and in 1998 he started working for an Australian aid organsiation and was posted to China, Vietnam and Vanuatu between 1998 and 2004.[14] While the husband was employed overseas, the wife remained in Australia caring for the children and the parties’ property.

    [14] Wife’s affidavit, filed 20 April 2011, [23] and [24].

11. It is common ground that while the husband was employed overseas, he became involved in a romantic relationship with Ms Z. I will consider this issue in more detail later in these Reasons.

12. After the parties separated in December 2009, the husband deposited money into the parties’ joint Commonwealth Bank account, the amounts varied from as low as $14,868 to as high as $24,620. The wife managed this money and used it to support the children and to pay the mortgage and other outgoings on all of the parties’ properties.[15]

    [15] Wife’s affidavit, filed 20 April 2011, [114].

13. In March 2010, the husband’s solicitors informed the wife that the husband would, in future, only deposit $2,500 into the parties’ joint account each month and that the “joint matrimonial debt” would be paid from “source”. After the wife detailed her monthly expenses (at the request of the husband) he increased the monthly deposit to $3,575 and indicated that he would be responsible for payment of the rates, mortgage instalments and landlord insurances for the parties’ properties. However, in April and May 2010, the husband only deposited $3,000 into the account. The wife then commenced family law proceedings in July 2010.[16]

    [16] Wife’s affidavit, filed 20 April 2011, [115].

14. On 27 August 2010 I made interim orders for spouse maintenance. Pursuant to those orders:

    a)The husband was to pay to the wife $1,400 spouse maintenance each week, with such payments to be made monthly in advance.

    b)The husband was required to pay each month into the parties’ joint account the minimum monthly mortgage repayments in respect of the three mortgages for the three properties owned by the parties. The agent for the parties’ two investment properties would deduct from the parties’ joint account his or her commission as well as any payments that need to be made in respect of those investment properties for rates and insurance. The wife will pay the rates in respect of the Queensland property.

    c)The sum of $8,400 withdrawn by both parties from the parties’ joint account on 13 July 2010 and paid to the wife is agreed and categorised by her as a pre-emptive division of the parties’ property, to be taken into account in the determination of final property settlement orders.

15. In March 2011, a Registrar of this Court issued a Third Party Debt Notice to Westpac Banking Corporation in respect of $32,281.75 owed by the husband to the wife pursuant to the interim orders of 27 August 2010.

16. This matter proceeded to final hearing in May 2011 and judgment was reserved.

17. In September 2011, another Third Party Debt Notice was issued by the Registrar to the ANZ Banking Group Ltd in respect of $34,503.45 owed by the husband to the wife pursuant to the interim orders. Yet another Third Party Debt Notice was issued in November 2011 for an amount of $20,902.33 owed to the wife, again pursuant to the interim orders mentioned above.

18. Following this, an Application in a Case was filed by the husband on 20 January 2012 in which he seeks to vary the interim orders, to set aside the Third Party Debt Notice of November 2011 and re-open the case for the purposes of providing evidence about the husband’s changed financial circumstances. The wife filed a Response to an Application in a Case in which she also seeks that the case be re-opened. In her case, the wife seeks to re-open so that further evidence can be adduced about the value of the Queensland and Canberra City properties. In addition, the wife seeks that Canberra Suburb property be sold and the net proceeds paid to the wife, such sums to be taken into account in the final property settlement.

19. On 10 February 2012, I gave leave for the substantive case to be re-opened so that further evidence could be adduced in relation to the husband’s current financial circumstances and the current value of the Queensland and Canberra City properties. I further ordered that the Third Party Debt Notice of 1 November 2011 be set aside, and that the Canberra Suburb property be sold and the net proceeds be deposited into the trust account of the husband’s or the wife’s solicitors pending finalisation of the proceedings or further order.

20. Evidence regarding the husband’s changed financial circumstances was filed in due course, and cross-examination of the husband about that evidence took place on 28 February 2012. A list of assets and liabilities was filed in Court on this date by the wife; this shows the value of the Queensland property as $570,000 and the value of the Canberra City property as $420,000. However, no expert evidence was provided about the current value of those properties.

Relevant law in determining property settlement orders

1. When determining the proper property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), the Court follows the “preferred” four-step process as outlined in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener).[17] Those four steps are:

   a)Determine the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing;

   b)Identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties;

   c)Identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant, and determine the adjustment, if any, that should be made to the contribution based entitlements of the parties established at the second step; and

   d)Consider the effect of those findings and determination and then determine what order is just and equitable in all the circumstances of the case.

   [17] (2003) FLC 93-143, [39].

The Asset Pool

1. In accordance with the four-step process, I first determine the identity and value of the property, liabilities and financial resources of the parties.

2. At final hearing in May 2011, the wife tendered a list of assets and liabilities.[18] That list was updated by the wife on the re-opening of the matter on 28 February 2012, when she filed in Court an updated list of assets and liabilities which the husband agreed with.

   [18] Exhibit W3.

3. The value of the net assets of the parties, based on the list of assets and liabilities provided on 28 February 2012, is set out below.

List of Assets and Liabilities

Assets	Ownership	Value
Queensland property	Joint	$570,000
Canberra City property	Joint	$420,000
Canberra Suburb property	Joint	$480,000
The Company	H	Nil
Holden Astra motor vehicle	W	$3,900
Husband’s motor vehicles	H	$9,500
Perpetual Investment Fund	W	$28,002
Money owed by Ms Z	H	$30,000
Total assets	$1,541,402
Liabilities
Mortgage over Queensland property	Joint	$193,262
Mortgage over Canberra City property	Joint	$218,039
Mortgage over Canberra Suburb property	Joint	$182,552
Total liabilities	$593,853
NET ASSETS	$947,549
Superannuation
AGEST super fund	H	$63,423
ANZ super fund	H	$82,037
AGEST super fund	W	$21,086
Total superannuation	$166,546
NET ASSETS incl super	$1,114,095

1. The $182,552 mortgage over the Canberra Suburb property is the figure as at 26 August 2010. Had the husband complied with the interim orders of 27 August 2010 and paid the minimum monthly mortgage repayments, the mortgage over the Canberra Suburb property would still be $182,552. In reality, the mortgage over the Canberra Suburb property as at the end of January 2012 was $225,483 as a result of the husband’s failure to comply with the interim orders. The husband should bear the burden of that increased mortgage.

2. In relation to superannuation, each of the parties sought that there should be a splitting order.  The wife, in her Minutes of Orders, sought the whole of the husband’s superannuation.  The husband sought that the wife should receive a base amount of $49,000.

3. In this matter, in my opinion, there would have been merit in dealing with superannuation as if it were part of the general list of assets and liabilities - an option preserved under Coghlan& Coghlan.[19]   However, given that both parties seek a splitting order, it seems to me to be appropriate that superannuation be treated separately from the general list of assets and liabilities, and that there be a sharing of the retirement income, such as it is, as has been generated by each of the parties together with a sharing of the property. 

s 79(4)(a) – Financial Contributions

[19] (2005) FLC 93-220.

Initial contributions

1. Each of the parties made contributions to the acquisition, conservation or improvement of the property of the parties to the marriage.

2. Both the husband and the wife had a house at the commencement of their relationship in mid 1981.  The wife’s house was sold and the net proceeds of sale were about $35,000.[20]  She also had a motor vehicle worth $3,400 in 1983. The wife obtained a valuation of this motor vehicle for the purpose of property settlement proceedings with her first husband.[21] 

   [20] Wife’s affidavit, filed 20 April 2011, [9].

   [21] Wife’s affidavit, filed 20 April 2011, [11].

3. The husband also owned a property at the commencement of cohabitation. This property was purchased with the wife’s assistance; she provided the husband with the initial deposit, and she also made curtains for this property and the parties painted the property together. The husband sold this house for something in the order of $33,000 in 1983 and the proceeds of that, together with the proceeds of the wife’s house were used by the parties to purchase a property together in Christchurch (“the Christchurch property”). The purchase price of the Christchurch property was $80,000 and the parties had a small mortgage over that property.[22] 

   [22] Wife’s affidavit, filed 20 April 2011, [10].

Remunerated employment

1. During the course of the relationship from time to time the wife worked as a teacher (detailed in paragraphs 13 to 15 above) She, however, ceased any significant paid employment in 1999 when the parties moved overseas as a result of the husband’s employment.

2. However, even though the wife was employed primarily as a home-maker after 1999, she sometimes earned small amounts of money which she used for the benefit of the family. For five years throughout S’s and D’s time at high school, the wife tutored students privately for four hours on Saturday mornings. On occasion, the wife took up other teaching jobs such as Essay Writing Skills for university students; she was also employed on a contract basis to mark Years 11 and 12 English essays. All of the wife’s income from these jobs was applied for the benefit of the family.[23] From 1990 to 1993, the wife set up a home business where she designed and made wooden toys, painted them and sold them. When she reached her target profit of $10,000, the wife used these funds to buy S a Baby Grand piano, which she still has in her possession.[24] 

   [23] Wife’s affidavit, filed 20 April 2011, [38].

   [24] Wife’s affidavit, filed 20 April 2011,[46].

3. The husband was substantially in full time employment through the period of the marriage except for two periods of unemployment.  The first was for a few months and the second was in 2004 when he took time off (possibly up to one year) to investigate property developments in wineries (see 16 these Reasons). The husband also studied during the course of the marriage to acquire his PHD.  I set out in more detail here the husband’s more significant employment contracts in international development and his salary.

4. After the husband ceased working for the A medical Foundation in late 1991, he was employed by a number of organisations. The husband’s employment from 1992 to 1999 included being a senior academic research fellow, a senior clinical lecturer at a University, a regional adviser in mental health in an international aid organisation, a senior health consultant at L Company and a project director at an Australian aid organisation. The husband’s employment was continuous and unemployment was rare.[25]

   [25] Wife’s affidavit, filed 20 April 2011, annexure A.

5. From January 1999 to February 2004, the husband was contracted by L & Associates Pty Ltd in a leadership/advisory position. His total contract remuneration for this period was AUD$869,498.[26]

   [26] Wife’s affidavit, filed 20 April 2011, [26].

6. The husband joined the X Bank in January 2005 as an advisor in Indonesia. Initially, his contact was for USD$218,000 which equates to AUD $281,508, based on the Reserve Bank exchange rate at that time. The husband’s contract was varied several times over the course of his employment so that his income was steadily increased. In March 2007, the husband was earning USD$265,000, which equates to AUD$328,377, again based on the Reserve Bank exchange rate at that time. The husband’s income from the X Bank was tax free.[27]

   [27] Wife’s affidavit, filed 20 April 2011, [27] and [29].

7. In about April 2008, the husband started a new contract with Y COmpany and was based in Papua New Guinea. A Previous Earnings Report shows that the husband’s net pay for the period from July 2009 to May 2010, inclusive, was $334,957.63.[28]

   [28] Wife’s affidavit, filed 20 April 2011, [29], annexure B.

8. In June 2010, the husband started working for the Australian aid organisation and was based in Papua New Guinea. In 2010, the husband received income of $35,458 a month; and in 2011, the husband received $39,123 a month.[29] The husband’s evidence is that $19,403 of that income goes towards living costs in Papua New Guinea.[30]

   [29] Wife’s affidavit, filed 20 April 2011, [30], annexures C and D; Husband’s affidavit, filed 20 April 2011, [24].

   [30] Husband’s affidavit, filed 20 April 2011, [24]; attachment C.

9. The husband resigned from his position with the Australian aid organisation in November 2011 and commenced employment with Y Company in the same month.[31] Under his current contract, the husband is paid a base salary of AUD$17,918 per month with a mobility allowance of AUD$3,295.20 per month. He is reimbursed for his housing costs up to the amount of PGK25,000 each month (equivalent to about AUD$10,500).[32]

   [31] Husband’s affidavit, filed 20 January 2012, [5] and [6].

   [32] Husband’s affidavit, filed 20 January 2012, [7] and annexure A.

10. It is evident that during much of the period of the marriage the husband, in working overseas, received substantial remuneration, much of it tax free.  There is no doubt that so far as the proceeds of labour are concerned the husband was much more significantly remunerated then was the wife.  Even after the proceedings were reopened before me the husband’s salary (after he changed jobs) was an agreed figure of $254,566 per annum (tax free).  In his previous employment it was more.  

11. The husband’s income was used by the parties as joint funds to purchase real estate and for the benefit of the family generally. (However, there is some question about the husband’s unilateral use of funds towards certain investments and for the benefit of Ms Z which I discuss in further detail below.)

12. Although the husband was receiving significant sums of money from his employment, this has not eventuated substantially in large numbers of assets or resources.  The real estate that the parties have owned, which appears in the list of property is the combination of some acquisition and sale of property during the course of the marriage.  However it would have seemed more likely than not that the debts in relation to those properties would have been reduced if the husband had applied his funds more rigorously towards debt reduction. 

13. Sadly it seems that most of the enterprises undertaken by the husband (other than his employment) were unsuccessful. 

14. A pharmacy sales internet site was set up overseas using the parties’ joint funds. The precise figure invested by the parties is unclear. The wife asserts that it was $100,000[33] while the husband claims it was $8,000.[34]  While both parties agree this venture failed and neither the money nor the drugs were ever recovered, it is unclear who the failure is attributable to. The wife alleges that this was a venture which was pursued by the husband despite her repeated expressions of concern to him[35], however the husband maintains that it was a joint investment in which both he and the wife made “jointly supported decisions”.[36]  

    [33] Wife’s affidavit, filed 20 April 2011, [72].

    [34] Husband’s affidavit, filed 20 April 2011, [35].

    [35] Wife’s affidavit, filed 20 April 2011, [72].

    [36] Husband’s affidavit, filed 20 April 2011, [35].

15. In addition, in about 2004, the husband invested at least $165,000 into the Company, which still exists and which is agreed by the parties to be worth nothing. The Company, of which the husband was the sole share holder, director and secretary, conducted a business which manufactured and sold building products. The manufacture of the products was done in Brisbane and the sale of the products was conducted over the internet. The husband’s brother-in-law managed the business.[37] 

    [37] Wife’s affidavit, filed 20 April 2011, [73]; Husband’s affidavit, filed 20 April 2011, [36]. 

16. The wife’s evidence was that she soon became “disillusioned” with the business and no longer supported the husband’s involvement of their joint funds in it. $20,000 of the parties’ joint funds had been used to pay the Company’s credit card debt, and between May 2007 and February 2010, the husband deposited in excess of $50,000 into the Company’s bank account. In 2006, the wife asked the husband to cease their involvement in the business, but he persisted, saying “If you want to make money, you have to put money in.”[38] The wife maintains that she asked the husband on numerous occasions to “close” the business as she did not regard it as viable, but that the husband’s position was that she was being “unduly negative”.[39]

    [38] Wife’s affidavit, filed 20 April 2011, [75].

    [39] Wife’s affidavit, filed 20 April 2011, [75], [76], [79].

17. In contrast, the husband’s evidence was that the wife “actively participated” in the Company; the parties jointly decided that the husband would be the sole shareholder, director and secretary and the wife “jointly discussed company strategy” with the husband.[40]

    [40] Husband’s affidavit, filed 20 April 2011, [36].

18. I accept that this was an enterprise conceived by the husband, and pursued by him over concerns expressed by the wife and that the failure of the business can in no way be attributed to the wife. I accept the wife’s evidence about this. 

19. The parties used the redraw facility on their mortgage to borrow $50,000 for the purpose of buying shares in 2007. However, the share trading activities resulted in a net loss; according to the wife, it was a loss of $10,024 and according to the husband it was $27,000.  The wife ascribes no blame in relation thereto to the husband as she was a consenting party to the transaction.[41] 

    [41] Wife’s affidavit, filed 20 April 2011, [81]; Husband’s affidavit, filed 20 April 2011, [37].

20. There is also no doubt that some of the husband’s funds were applied possibly for a period of five years or more for the benefit of the person with whom he was having an affair, Ms Z. It is unclear precisely when the husband’s relationship with Ms Z started. According to the wife, in 2005 she found immigration sponsorship papers for Ms Z and her two sons. The wife recognised the writing on the papers as that of the husband’s, and the “marital status” section of the papers was completed as “separated awaiting divorce”.[42] When the wife confronted the husband about his relationship with Ms Z after finding the sponsorship papers, the husband admitted that he and Ms Z had been having an affair for five years.[43]

    [42] Wife’s affidavit, filed 20 April 2011, [83].

    [43] Wife’s affidavit, filed 20 April 2011, [84].

21. The husband was deceptive with the wife about this relationship. Notwithstanding his purported repudiation of it at one point, it resumed and continued until the beginning of proceedings between the parties in this Court.[44] The relationship has apparently now terminated and while Ms Z lives in Australia, the husband has indicated that he does not propose to resume any relationship with her.[45] 

    [44] Wife’s affidavit, filed 20 April 2011, [84]; Husband’s affidavit, filed 20 April 2011, [40].

    [45] Husband’s affidavit, filed 28 February 2012, [19].

22. In 2005 the wife says she discovered the husband had placed a $26,000 deposit, allegedly withdrawn form the parties’ joint bank account, on a house in Queensland about 20 minutes away from the parties’ Queensland property. Upon confronting the husband about this issue, he admitted that he had intended to keep Ms Z in this property as his “mistress”. The husband subsequently withdrew from the purchase of this property and the $26,000 deposit was forfeited.[46] The husband’s evidence was that this money, which he asserts was $25,000, was a loan to Ms Z for the purpose of purchasing a property, but that this purchase never eventuated. Ms Z has allegedly been repaying this loan to the husband and the amount outstanding in April 2011 was $12,000.[47] A sum of $4,000, asserted by the husband to be another loan, was paid from the parties’ joint mortgage equity account to Ms Z in 2005.[48] The agreed list of assets and liabilities detailed above at paragraph 33, shows $30,000 owed by Ms Z to the husband.

    [46] Wife’s affidavit, filed 20 April 2011, [84].

    [47] Husband’s affidavit, filed 20 April 2011, [44].

    [48] Wife’s affidavit, filed 20 April 2011, [84].

23. Apart from these “loans” to Ms Z, it is apparent that the husband used his income for the benefit of Ms Z. Until Ms Z and the husband started living together in January 2010, Ms Z had spent time with the husband in the country in which he was working at that time. The husband paid for her airfares and her living expenses on those visits.[49] Those visits would have occurred during the parties’ marriage as the husband and Ms Z had not commenced cohabitation until January 2010, a month after the parties separated.

    [49] Husband’s affidavit, filed 20 April 2011, [43].

24. The husband also rented a second home for Ms Z in Queensland and paid for travel and accommodation for Ms Z and her family when they visited Australia and New Zealand from 2004 onwards. The husband’s credit card statements showed airfares amounting to $13,040 between 2006 and 2009. It also showed payments for resort accommodation and visits to tourist attractions in Queensland. The husband admitted spending those amounts. In the second half of 2009, the husband made three payments to Ms Z totalling $16,522.[50]

    [50] Wife’s affidavit, filed 20 April 2011, [86].

25. In 2000, the husband purchased a yacht for about $50,000 or $60,000 with the parties’ joint funds. Prior to selling the yacht in 2007, the husband spend about a considerable amount on additional features including a GPS navigation system, a new main mast, a new boom, a new toilet system, a new set of sails, complete new canvas cabin cover, a water maker and extensive engine work. When the yacht was sold in 2007, the sale price was not sufficient to cover the cost of the boat and the cost of the additional features. Although the parties’ figures differ, it is agreed that the yacht was sold at a loss of tens of thousands of dollars.[51]

    [51] Wife’s affidavit, filed 20 April 2011, [98]; Husband’s affidavit, filed 20 April 2011, [38].

26. The husband bought a second boat while in Papua New Guinea and it was used by the husband as a place of residence. The finance contract for the purchase of the boat required the husband to make monthly payments of $5,680.92 for four years.[52] Details about the purchase of this second boat were not initially volunteered by the husband.  In fact proceedings about spouse maintenance in August 2010 occurred with the suspicion that the boat purchase had occurred but no information being made available by the husband.  His evidence both during the trial and the supplementary evidence during February 2012 showed that he was either vague or deceptive or both.  I accept that he was deceptive and deliberately so in relation to the boat in connexion with the proceedings about maintenance.  His answers to questions put to him during the course of cross examination and the general nature of his affidavit left me with the strong view that unless his evidence were independently corroborated I would not in general terms be prepared to accept his word on something that may devolve to his detriment.  I do not make a positive finding, other than in relation to the boat and the maintenance proceedings, that the husband has been deliberately deceptive. But whether it was deliberate or not, he failed properly to be responsive to requests for information about his affairs or perhaps was unable to be effectively responsive and this is peculiar given the high level of responsibility he reports himself as having in relation to his employment and his proclaimed expertise to his wife that he should look after their financial affairs because of his superior management ability.[53] 

    [52] Wife’s affidavit, filed 20 April 2011, [104] and annexure H; Husband’s affidavit, filed 20 April 2011, [51].

    [53] Wife’s affidavit, filed 20 April 2011, [99].

1. The evidence of the husband in his most recent affidavit is that he is unlikely to recover the cost of the boat he is currently living in.[54]

   [54] Husband’s affidavit, filed 28 February 2012, [17].

2. It would appear from the affidavit material of the wife, and from her submissions, that she retains a substantial suspicion that the husband has in some way applied funds that he earned overseas other than in the creation and maintenance and conservation of the assets that appear in the List of Assets and Liabilities tabled above in these Reasons.  This was not an articulated submission in the end but should be dealt with for greater caution.  The position of the wife essentially is that the husband was earning substantial sums of money while he was away and has very little to show for it at the end.  She expressed surprise that some of the properties had not had the debts relating to them further reduced from the husband’s substantial income. 

3. It is clear that some of the husband’s money was spent on his then partner, Ms Z.  He also bought the boat which appears to have been a significantly unsuccessful investment.  He invested in the pharmacy sales business and the building product sale business through the Company which were equally unsuccessful. 

4. In the end, however, there was no evidence that suggested that there was any property or income of the husband anywhere other than in the List of Assets and Liabilities above.  The husband generated suspicion about these things by his withholding of information about the boat that he was (and apparently is) still living in.  However, suspicion and evidence are not synonyms.  While acknowledging the decisions of the Full Court in Weir & Weir[55] and Black & Kellner[56] it does not seem to me in this matter that there is any evidence of any other property beyond that which appears in the List of Assets and Liabilities.  It would be open, as indeed the Minutes of Orders sought by the wife suggests, in an environment of lack of disclosure to make orders in her favour about the whole of the known property.  However, this would not be a proper or equitable division of property in this matter, in my opinion, particularly as there is no evidence as to the husband’s disposal of funds other than as I have indicated above. 

   [55] (1993) FLC 92-338.

   [56] (1992) FLC 92-287.

5. It might also have been argued that to the extent there is no property other than in the List of Assets and Liabilities, the husband’s actions in expending his considerable income might properly be regarded as waste in accordance with the dicta of the court in Kowaliw v. Kowaliw.[57]   The lack of success in business is not of itself waste and, in my opinion, the facts in this matter do not lend themselves to a finding in accordance with the judgment of his Honour Justice Baker in Kowaliw. 

   [57] (1981) FLC 91-092.

Inheritances and gifts

1. The wife’s parents initially lent, and subsequently gave, the sum of $20,000 to the parties towards the purchase of the K home when the parties relocated to Australia in 1987.[58]  The wife received gifts from her father of about $51,500 after 2003, and $42,970.79 of those funds were deposited in joint bank accounts and used for joint expenses.[59] She also received indirectly an inheritance of $20,000 via her mother from her godmother and those funds were deposited into the parties’ joint account in April 2004.[60] A further $108,801.30 (including interest) was received by the wife from her mother’s estate in 2004 and, again, that amount was deposited into the parties’ joint account.[61] It is possible that this amount may have been included in the funds received by the wife from her father which were principally directed to the Queensland property. I am unable on the evidence to resolve this confusion.

   [58] Wife’s affidavit, filed 20 April 2011, [64].

   [59] Wife’s affidavit, filed 20 April 2011, [66] and [67].

   [60] Wife’s affidavit, filed 20 April 2011, [68].

   [61] Wife’s affidavit, filed 20 April 2011, [69].

2. In December 2005, after her father died, $20,000 the wife received from his estate was invested by her in Perpetual Wealth Focus Investments.  This investment was retained by her in specie at the time of the hearing.[62] 

   [62] Wife’s affidavit, filed 20 April 2011, [71].

3. There was a small amount also, just under $6,000, in residual bank accounts owned by the wife’s father at his death.  These funds were received by the wife.[63]

   [63] Wife’s affidavit, filed 20 April 2011, [71].

4. There is some confusion in the evidence about the money that was received by the wife from the sale of her father’s house in Canberra.  It appears that the house was sold for $430,000 or thereabouts, and those funds were put into a term deposit account which accumulated interest. By January 2005, the balance of the fund was $431,820.13. I accept that at least a substantial part of that sum, if not all of it, was, as the wife says, applied towards the purchase of the Queensland property in which the wife now lives.[64]

   [64] Wife’s affidavit, filed 20 April 2011, [70]; At [31] of the husband’s affidavit, filed 20 April 2011, he agrees that the wife used $350,000 for joint purposes, but that purpose was to reduce the mortgages not to purchase the Queensland property.

5. In 2000 or 2001, the husband also received an inheritance which was used to reduce the parties’ mortgages at that time. The amount of the husband’s inheritance was in dispute; the husband claims it was $10,000 while the wife claims it was $13,832.67.[65] 

   [65] Wife’s affidavit, filed 20 April 2011, [65]; Husband’s affidavit, filed 20 April 2011, [30] and [34].

6. Contributions of the wife in this area were substantially more than that of the husband.  Given the relatively limited pool of property to be divided between the parties, her contributions in this regard must be regarded as massive. 

S 79(4)(b) – Non-Financial Contributions

1. When the husband started working in international consultancy, many of his contracts took him overseas for work for extended periods. As appears from annexure 1 to these Reasons for Judgment, the husband spent much of his working time overseas.  Some of this was with the wife but a lot of it was not, as appears from annexure 1. The husband says he resided primarily in the family home until 2000 and it was only after D turned 15 that he started working extensively overseas.[66] I set out in annexure 1 of these Reasons the number of days that the husband was working overseas.

   [66] Husband’s affidavit, filed 20 April 2011, [20].

2. Clearly, the husband was away from the family home for extensive periods since at least 1995. During those periods it fell to the wife to make the non-financial contributions to the family home and the parties’ properties. Necessarily the husband’s non-financial contributions were less than those of the wife. 

3. Improvements to a number of properties in which the parties lived and the regular maintenance of those properties fell substantially to the wife, and again I accept her evidence about the work she did in painting, washing, cleaning, weeding and other associated activities as set out in her affidavit.[67]  

   [67] Wife’s affidavit, filed 20 April 2011, [42]- [63].

New Zealand properties

1. When the husband sold his L Street property, the wife assisted in preparing the property for sale. She cleaned, weeded the garden and washed the curtains. When the parties moved into their first home together at B Street, the wife undertook extensive interior decoration of the home by herself. She painted the ceiling, wallpapered the walls, painted the majority of the exterior weatherboards of the extension to the home, painted the first coat of the corrugated iron roof and designed, planted and maintained a garden which was about one-third of an acre. When the kitchen extension was being built, the wife was very involved. She applied seven coats of polyurethane to every rimu ceiling plank; laid the cork tiles over the kitchen and bathroom concrete slab and then polyurethaned and sanded the whole floor; she removed paint from ten interior doors, sanded and varnished them and also painted all interior window frames.[68]

   [68] Wife’s affidavit, filed 20 April 2011, [42].

K property

1. This property was purchased when the parties moved to Australia. The wife again undertook extensive improvements to this property herself. She repainted the interior and exterior doors and door frames; replaced all of the curtains with ones she sewed herself; made all of the soft furnishings including lamp shades, lounge suite covers, and dining room covers; sanded and re-surfaced the dining table and outdoor decks. The wife purchased all the wooden furniture raw and then varnished them herself.[69]

   [69] Wife’s affidavit, filed 20 April 2011, [45].

2. During the 1990s, the K home was extended to include a formal lounge, entrance hall, storage room, bedroom with mezzanine floor and large study, double garage, two new decks and two-room studio in the garden. The wife oversaw the project through to completion as there were numerous periods when the husband was overseas (see annexure 1). She supervised the builders, organised for plans to be drafted, obtained quotes, and organised the collection and payment of materials. In addition, she painted all the interior surfaces, the two new decks and the outdoor studio; laid all the cork tiles in the study and made all soft furnishings. She painted all four decks of the home annually until the parties moved to Queensland in 2005.[70]

   [70] Wife’s affidavit, filed 20 April 2011, [45].

3. When the parties did decide to move to Queensland, the wife was responsible for cleaning the home and gardening in preparation for the sale of the K property. The wife was also responsible for organising the auction; mail forwarding and all final electricity readings and phone bills. The husband did not attend the auction. When the parties arrived at their new home in Queensland, the husband had to leave for work overseas and it was up to the wife to unpack the parties’ belongings and furniture in the Queensland property.[71]

   [71] Wife’s affidavit, filed 20 April 2011, [49] to [51].

Queensland property

1. Over the first six months of living in the property, the wife re-painted the interior of the home, made new curtains, pulled up the old carpet and vinyl flooring and organised for the installation of new flooring throughout the house. She did this without any assistance from the husband.[72]

   [72] Wife’s affidavit, filed 20 April 2011, [52].

2. The wife was responsible for maintaining the Queensland property, she did the gardening and cleaned the mould that formed on the exterior weatherboards and bricks.[73]

   [73] Wife’s affidavit, filed 20 April 2011, [55].

Investment properties

1. The investment properties acquired by the parties between 2001 and 2007 were all selected off the plan by the wife. She researched each property and attended the sites before deciding which would be purchased. The wife liaised with the real estate agent and the conveyancing lawyer when the properties were purchased.[74]

   [74] Wife’s affidavit, filed 20 April 2011, [53].

2. In addition, she chose and organised for all six apartments the installation of the floor coverings, light coverings and window treatments. Again, the wife made all the curtains herself.[75]

   [75] Wife’s affidavit, filed 20 April 2011, [54].

3. Until the parties moved overseas, the wife managed two of the investment properties herself (the G units), and the remainder were managed by a real estate agent. The wife ensured that maintenance issues were dealt with and responded to all correspondence from the real estate agent. When the wife managed the G units, she would personally conduct the maintenance checks every four months, reviewed the rents and ensured rent was paid on time into the parties’ joint account. The wife was the point of contact for the tenants when she managed the G units herself, and was also the point of contact for the real estate agents when they took over management after the family relocated overseas.[76] Although the real estate agent took over management of the investment properties, the wife still attended to all the administration of the investment properties on return visits from overseas.[77]

   [76] Wife’s affidavit, filed 20 April 2011, [54], [57] and [58].

   [77] Wife’s affidavit, filed 20 April 2011, [59].

4. When four of the investment properties were sold, the wife attended the apartments and liaised with the selling agents and conveyancing solicitor to facilitate the sales.[78] The two investment properties which remain are the Canberra city property and the Canberra Suburb property, which was recently put on the market for sale pursuant to Court orders.

   [78] Wife’s affidavit, filed 20 April 2011, [58].

The Company and the building product business

1. In relation to this business, the wife assisted with phone enquiries, delivery of goods and telephone calls.  This she carried out at no recompense and she assisted further with the loan of her father’s car to the husband’s brother-in-law and the provision to him of accommodation when he needed it when he visited in Brisbane.[79]  It appears that not less than $70,000 had been deposited into the business account.[80]  The wife’s evidence about the withdrawal of funds from this company is somewhat vague and I draw no inferences that the husband in fact derived income and benefits from this company which he has not disclosed.  Nevertheless in the end, notwithstanding the efforts on behalf of the wife, the business is worth nothing and funds from the parties went into it.

   [79] Wife’s affidavit, filed 20 April 2011, [74].

   [80] Wife’s affidavit, filed 20 April 2011, [75] and [76].

Other non-financial contributions

1. Generally, it was the wife who did all the gardening and mowing of the lawns. She also organised the advertising of the parties’ cars whenever they were sold and dealt with interested buyers. Whenever the husband returned to Australia, the wife, at the husband’s request, organised the required medical and dental appointments for him. Throughout the marriage the wife also proof-read and edited the reports the husband had written for his work overseas.[81]

   [81] Wife’s affidavit, filed 20 April 2011, [61]-[63].

2. When the wife returned to Canberra with the children in 2000, she redecorated the interior of their home, which had been tenanted in their absence. She painted the walls in all rooms; pulled up bedroom carpet and organised for new carpet to be laid. She also polyurethaned S’s bedroom floor because S was asthmatic.[82]

   [82] Wife’s affidavit, filed 20 April 2011, [60].

S 79(4)(c) – Contributions to the welfare of the family

1. During the whole of the marriage the wife was primarily responsible for all of the home-making and substantially much of the parenting.  This situation was made more significant by the frequent and lengthy absences of the husband.  It also included in the circumstances the care of S and D, although I note that the wife’s care of her child from a previous relationship (C) is not relevant for the purposes of contribution. 

2. The extensive involvement of the wife in school activities and other matters relating to the children are set out substantially in her affidavit and I have no reason to doubt what she has said.

3. The wife was responsible for all of the housework – the washing, ironing, sweeping, mopping, vacuuming and dusting. She was responsible for doing all of the laundry, the washing, hanging out on the line, folding and putting away.[83]

   [83] Wife’s affidavit, filed 20 April 2011, [35].

4. The wife was also the primary carer for the children. She took them to school each day, organised extra-curricular activities and took the children to and from those activities as well as to and from their social activities and to the children’s part-time jobs when they obtained those in high school. She taught the children to cook, read and drive.[84]

   [84] Wife’s affidavit, filed 20 April 2011, [36] and [37].

5. The wife was also heavily involved in the children’s school life. When the children were at pre-school and primary school, the wife regularly volunteered in the classroom and in the canteen. When the S and D commenced high school, the mother joined the “Work for Fees” system, where she helped clean classrooms and worked in landscaping groups in order to save money on school fees. The wife attended all of the children’s school camps as a parent helper and was often a driver for school excursions.[85]

   [85] Wife’s affidavit, filed 20 April 2011, [36], [38], and [39].

6. When the family moved overseas for the husband’s work, the wife organised for S and D to participate in distance education. The wife supervised their school work each day at home.[86]

   [86] Wife’s affidavit, filed 20 April 2011, [40].

7. The wife’s contributions to home-making and parenting should be given substantial weight. 

8. There is some dispute about whether the husband made financial contributions towards his step-daughter, C. The wife’s position is that C was supported financially to a great extent by her father who paid child support in accordance with a maintenance order. C’s father also contributed to half the cost of C’s travels to visit him in New Zealand between 1987 and 1994, and paid for 100 per cent of her music lessons and the cost of her instrument.[87] The husband, however, alleges that he financially supported C throughout the marriage. In relation to that, I indicate that I accept the wife’s evidence that C was substantially financially supported by her father and that the husband ought not to receive much, if any, weight for any financial contributions he may have made towards C’s welfare.

   [87] Wife’s affidavit, filed 20 April 2012, [12].

9. The husband’s contributions to the parenting of C might be considered as a contribution in accordance with the reasoning in Robb & Robb.[88] The husband drew attention to what he submitted were his contributions in this regard:[89]

   a)Contributions to C’s family home ($40,000)[90];

   b)Contributions to C’s wedding ($10,000);

   c)Payment of university fees ($30,000);

   d)Multiple overseas holidays in New Zealand, Vanuatu and Fiji ($8,000); and

   e)Recreational courses, including a driving course valued at $3,000.

   [88] (1995) FLC 92-555.

   [89] Husband’s affidavit, filed [54].

   [90] The husband appears to contradict himself about the source of this sum. It may not in fact have come from him.

10. I have previously indicated that in relation to support for C I accept the wife’s evidence about the fact that C was supported by child support from C’s father.  The contributions made to C’s welfare by the husband, which I acknowledge were undoubtedly very welcome and demonstrated generosity on his part, fall in my opinion rather into the category of gifts (rather than constituting support) or recognising in some way a moral, if not legal, obligation to contribute to the support and parenting of C.

11. Accordingly, it would seem that any weight to be given to what might be described as Robb & Robb (supra) contributions by the husband should be relatively small, but forms part of the matrix of contributions made by each of the parties. 

Summary

1. It is difficult to compare contributions in an effective way.  The fact that the husband earned substantial sums of money but does not have any left does not mean that he did not adequately carry out his duties of employment.  The parties could not have acquired all their real estate without the benefit of his income.  The fact that a party does not produce substantial assets from his or her earnings is not a criticism.   A labourer might work hard and long but still not produce riches.  A share trader may, notwithstanding his or her expertise nevertheless, suffer set backs in his or her investment portfolio.  A party may, though working hard nevertheless, fail to produce additional substantial assets.  The circumstances in which the husband has been living have been difficult.  Almost all of the places in which he has worked would not be regarded by most people as tourist locations of choice.  The hardships he describes in his most recent affidavit about murders, shootings and bashings he has witnessed and the violence involving his staff[91], are indicative of the difficult circumstances in which he has been living and working.

   [91] Husband’s affidavit, filed 28 February 2012, [1(d)].

1. At the same time his absences have created physical, emotional and financial hardship for the wife and these are somewhat poignantly summed up in an e-mail from her to him during the course of their relationship in which she says: “This extra time that you are away is taking its toll. I had mentally only steeled myself for two weeks, not five.”[92] 

   [92] Wife’s affidavit, filed 20 April 2011, annexure G.

2. The external contributions which have been made by the wife through her family and her inheritances particularly are, as I suggested previously, massive.  She should certainly receive no less credit for her contributions to the welfare of the family as home-maker and parent, or her indirect contributions during the course of the marriage than the husband does for his income-earning activities.  In fact by way of comparison, although the money earned by the husband was relatively substantial I regard her contributions as home-maker and parent and her non-financial contributions as, comparatively, exceeding the husband’s contributions from his remuneration. 

3. Doing the best I can in the circumstances, I think it is appropriate that the wife should be regarded as having made 75 per cent of the contributions to the property of the parties.  This is some 10-15 per cent more than suggested by counsel for the husband and in line with what was suggested by counsel for the wife. 

Adjustments to Contribution based entitlements

S 79(4)(d) – Effect of any proposed order upon the earning capacity of either party

1. The orders I propose do not impact on the earning capacity of either party. 

S 75(2)(a) – Each party’s age and state of health

1. The wife is at an age where many people might retire. There is nothing to indicate that she has any significant health concerns.

2. The husband is also at an age where many people might retire. Despite the fact the husband is currently in gainful employment and in 2010 entered into a loan contract for the purchase of a boat, where the repayments were $5,680.92 a month for 60 months, there is some question about whether the husband will retire or will be able to secure appropriate, gainful employment. That is a question which I address later in these reasons.

3. When the matter was re-opened in February 2012, the husband raised issues about his medical condition. He deposes to having been diagnosed with collapsed 4, 5 and 6 lumbars and this is restricting the nerves to his legs which apparently collapse without warning and has resulted in a loss of sensation in the sole of his right foot. He also allegedly suffers from arthritis in both arms, however a final diagnosis about the type of arthritis is pending.[93] However, no medical evidence was presented by the husband about his condition and I attribute little weight to the husband’s non-expert opinion. He had the opportunity to adduce proper evidence if he thought it to be appropriate. 

S 75(2)(b) – Each party’s income, property and financial resources and his or her capacity for appropriate gainful employment

[93] Husband’s affidavit, filed 28 February 2012, [1(b)] and [1(c)].

1. The financial position of the parties might, at the time the trial was originally concluded, have been resolved substantially in an adjustment to the wife.  At that point the husband was in full-time well-remunerated employment and the wife would, as she has suggested, find it difficult to obtain appropriate gainful employment at her age, given the time she had been out of the work force and because of her commitment to supporting the career of the husband. 

2. When the matter was re-opened in February 2012, the supplementary evidence adduced to the Court indicates a tired and, to some extent, broken husband who wants to return to Australia.  His desire in this regard is perhaps explicable as is suggested above. Papua New Guinea has high living costs and security problems. The husband has unwillingly witnessed three murders, two shootings and one bashing; he has had to intervene and deal with the consequences of the attempted murders of three of his team members and acts of “unbelievable violence” involving his staff. He says, quite understandably, that he “want[s] a normal life where [he] can walk the streets and to a shopping centre.”[94] He also wishes to return to Australia in order to restore his relationships with his daughters.[95] 

   [94] Husband’s affidavit, filed 28 February 2012, [1(d)].

   [95] Husband’s affidavit, filed 28 February 2012, [1(e)].

3. The husband is presently employed by Y Company. His base salary is $17,918 plus a mobility allowance of $3,295 each month. The housing allowance is a reimbursable PGK25,000 a month.[96] He will continue in his present employment for some three or four months until he returns to Australia.[97] The husband’s evidence is that when he does return, his employment opportunities are expected to be very limited due to his age. He deposes that his health problems may make working difficult and obtaining the medical clearance required for an overseas engagement would be unlikely as he is an insurance risk.[98]

   [96] Husband’s affidavit, filed 20 January 2012, [6].

   [97] Husband’s affidavit, filed 28 February 2012, [1] and [4].

   [98] Husband’s affidavit, filed 28 February 2012, [4]; Husband’s affidavit, filed 20 April 2011, [60].

4. Although the husband’s qualifications are principally in international property management, he has significant skills, as is illustrated by his successfully obtaining a succession of well-paid jobs. In the absence of any evidence to the contrary from the husband (and it should be noted that I place little weight on his non-expert opinion about his health), his prospects of finding employment, whether in Australia or elsewhere, must be reasonable. There is no particular reason why he cannot apply the skills that he has applied around the world yet again after he returns to Australia. 

5. Without making any final determination at this stage about the division of property, the wife will finish up with a significant proportion of the property of the parties as it is presently constituted and the husband perhaps with little.  However, once the wife has discharged the parties’ indebtedness in respect of the mortgages on the various properties, she will be left with little additional capital from which to derive an income in the future.  Her own superannuation is minimal and the consequences for her will probably involve the sale of the property, the acquisition of a much smaller and perhaps less attractive dwelling and the eking out of an existence on relatively small amounts for the future. 

S 75(2)(e) – Responsibilities to support another person

1. The parties’ daughter, D, is financially dependent on the parties as she is studying at university. She has a further three years of study before she completes her degree.[99] This appears to be a joint obligation and does not otherwise cause me to make an adjustment of property division to either party.

   [99] Wife’s affidavit, filed 20 April 2011, [6].

2. The husband no longer has any obligation towards Ms Z or her children as his relationship with her has ended. 

3. Although the husband would like me to accept that he will not work again if he returns to Australia, I am not so satisfied.  For the reasons I have set out above I do not accept that his evidence in relation to matters which may operate to his detriment is likely to be acceptable and while the payment of maintenance to the wife would impose a significant liability upon him I am satisfied from the most recent evidence that he has the capacity to meet that order at least while he earns his income as at present (see paragraphs 131 to 138 below).  It is open to him when he ceases to so earn, to seek a variation on the maintenance. 

4. All in all, it seems to me that the long-term prospects for the wife are in some respects still inferior to those of the husband, although any adjustment in her favour in this regard would have to be small because of the potential down-side  for the husband as a result of the division of property.  I note that counsel for the husband suggested that an adjustment of some five per cent might be the appropriate adjustment in favour of the wife and I agree.  

Just and Equitable Order

1. I noted previously that superannuation would be treated separately from the pool of property to be divided.

2. In my opinion the appropriate way of dealing with the division of property between the parties is that the wife should receive 80 per cent of the total of the assets excluding the superannuation (an amount of 758,039.20[100]). This means that each of the parties will have some effectively guaranteed retirement income plus some assets.  The adjustment involved is small, but nevertheless accords with both the intention of the legislature and also the intentions of each of the parties. 

   [100] This is based on the notional value of the Canberra Suburb property being $297,448.

3. In February 2012, when the matter was re-opened, the Canberra Suburb property was on the market for sale. The sale price at that time was, and is still, unknown. For this reason, I deal with the net sale proceeds from the Canberra Suburb property separately from the remainder of the asset pool. The value of the net assets less the notional value of the Canberra Suburb property (with the value of the mortgage as at August 2010) is $650,101 (= $947,549 - $297,448). The wife should receive 80 per cent of $650,101, being $520,081.[101]

   [101] All figures are rounded to the nearest dollar.

4. The wife will receive, as a result of the orders:

The Queensland property	$376,738
the Canberra City property	$201,961
part of the net proceeds of sale of the Canberra Suburb property	(see following paragraphs)
her motor vehicle	$3,900
her funds from Perpetual Investment Fund	$28,002
$610,601

1. Before the receipt of her share of the Canberra Suburb property’s net sale proceeds, the wife will have $610,601. This is $90,520 more than what she is entitled to receive of the total net asset pool less the Canberra Suburb property sale proceeds (= $610,601 – 520,081). The wife will need to pay to the husband $90,520 from her share of the Canberra Suburb property sale proceeds. The wife should receive 80 per cent of the Canberra Suburb property’s net sale proceeds, with the mortgage notionally regarded as $182,552. I accept that it should be so taken because the increase in the mortgage to $225,483, as at January 2012, is attributable to the husband’s failure to comply with the interim orders made in August 2010.

2. Accordingly, upon the sale of the Canberra Suburb property, after deduction of all of the expenses relating to the sale, and after deducting the “notional mortgage figure” of $182,552, the wife should receive 80 per cent of that sum less $90,520 and the $8,400 (the pre-emptive division of property from 27 August 2010.)

3. The husband would then receive the balance of the net sale proceeds.

4. The net effect of orders of the sort I have indicated would be that most of the real estate would pass to the wife, noting that the Canberra Suburb property was in the process of sale when the matter was last before the Court. 

5. The effect of a division of property in accordance with the determinations I have made above would be that the wife will have accommodation, if she chooses to liquidate all of the assets, mortgage free and some small amount of retirement income.  The husband will have very little capital but will have his earning capacity such as it is.  Neither party will be in a satisfactory position but in my opinion the orders reflect a proper and just division of the property between the parties. 

Superannuation

1. The husband submits that there should be a splitting order in relation to his superannuation in favour of the wife of $49,000. She has $21,086 of superannuation in her own right. The superannuation order sought by the husband means that the wife would receive superannuation benefits of $70,086 (=$21,086 + $49,000) which is about 42 per cent of the total superannuation ($70,086/$166,546). I find accordingly. The wife, through her home-making and parenting contributions, made indirect contributions to the husband’s superannuation. However, the husband’s direct contribution to his own superannuation as a result of his high earnings must be given credit. That the wife should receive 42 per cent of the total superannuation pool is, in my opinion, a proper and fair reflection of her contribution in this regard. I take into account that this is a suggestion from the husband. The effect of this superannuation split is to provide the parties with some (obviously limited) secure retirement income.

Spouse maintenance

1. In addition to the matters set out above in relation to s 75(2) and taking account of the proposed property division, and additionally considering ss 75(2)(g), (j), (k) and (n) on the basis of the evidence and analysis above, the present order for spouse maintenance should continue. It is difficult to determine the husband’s outgoings if he returns to Australia, and it is unclear precisely when that will be. His present outgoings are:[102]

   a)Spouse maintenance $6,067;

   b)Boat mortgage $5,830;

   c)House mortgages $1,250;

   d)Berth rental and electricity in Papua New Guinea $2,200;

   e)Cost of living in Papua New Guinea $2,200; and

   f)Airfares and living in Australia $2,800.

   [102] Husband’s affidavit, filed 20 January 2012, [16].

2. The husband also has legal expenses adding up to $61,490, credit card debt of $3,000, and marine engineer debt of $3,000.[103]

   [103] Husband’s affidavit, filed 28 February 2012, [6]-[12].

3. The husband’s current monthly income is $21,213.20, comprising $17,918, plus a mobility allowance of $3,295.[104] While the husband is able to be reimbursed for housing costs up to PGK25,000 a month, he does not receive this because this allowance is not applicable to mortgages over boats, which is where the husband current lives. The husband’s current income and outgoings are such as would permit him to make spouse maintenance at present. The wife has need for maintenance[105] and the husband has capacity to pay.

   [104] Husband’s affidavit, filed 20 January 2012, annexure A.

   [105] Wife’s affidavit, filed 7 February 2012, [27]-[32].

4. The husband will no longer have the house mortgage expenses, and, if he chooses to do so, he could eliminate his present debts from his share of the property division.

5. Both parties will have significant legal expenses which will almost certainly eliminate any otherwise unutilised funds they may have as a result of the property division. It is a disaster for both. Although the husband may not wish to remain in PNG (and who would in the circumstances he describes), if he chooses to remain, he could still live on his boat, he would still have his monthly income and some of his debts and expenses would have been eliminated.

6. For her part, the wife will have accommodation but very little income.

7. It is open to the husband when he ceases his employment to seek a change to the maintenance orders or to make such further application as he considers appropriate about income in the light of the property determination. 

8. In the light of the continuance of periodic spouse maintenance, the wife’s application for lump sum spouse maintenance is premature and dismissed.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 4 April 2012.

Legal Associate: 

Date:  4 April 2012

Annexures

Annexure 1

Year	Month	Number of Days
1998	July to August	25 days
November	4 days
1989	August	7 days
November	9 days
1990	April	13 days
June	11 days
October and November (two separate trips)	16 days
1991	March	3 days
May/June	11 days
October	9 days
1992	July	4 days
1993	February	6 days
March	4 days
August	10 days
October/November	25 days
November	14 days
December	20 days
1994	January	8 days
March	2 days
April	20 days
May	23 days
July	20 days
August	17 days
October/November	21 days
November	6 days
November/December	29 days
1995	February	20 days
March	31 days
April	10 days (continuing from the March trip)
Mid April to May	43 days
June	11 days
July	18 days
August	40 days
End of September to start of October	14 days
October	20 days
November	26 days
December	15 days
1996	April/May	21 days
June/July	26 days
August/September	32 days
October	4 days
October/November	15 days
November/December	17 days
1997	April	10 days
June	11 days
October	13 days
November	10 days
December/January 1998	24 days
1998	January to February	11 days
July	5 days
July/August	8 days
September	6 days
October	9 days
November	13 days
1999	January to February	34 days
March/April	25 days
April to October	5.5 months
October/November/December	48 days
December/January 2000/February 2000	42 days
2000	February to March	28 days
5 March to 19 June	3 months
15 October to 8 December	Nearly 3 months
2001	9 January to 9 February	1 month
February	Further 5 days
25 February to 1 June	Over 3 months
June/July	46 days
August to October	54 days
October/November	22 days
November to December	38 days
2002	January/February	18 days
February/March	19 days
16 March to 11 May	2 months
22 May to 9 August	Almost 3 months
19 August to 8 November	Almost 3 months
November to December	32 days
2003	January/February	21 days
19 February to 5 May	Almost 3 months
May	Further 12 days
June/July	37 days
July to August	31 days
20 August to 19 September	1 month
October	6 days
October/November/December	50 days
2004	January	12 days
25 January to 3 April	Over 2 months
April to May	40 days
May to June	23 days
July	19 days
July/August	31 days
October/November	26 days
December/January 2005	33 days
2005	January	3 days
February	4 days
March	13 days
July	11 days
August	39 days
September	13 days
December	13 days
December/January 2006	30 days
2006	January/February/March	42 days
26 April to 21 August	Nearly 4 months
6 September to 18 December	Over 3 months
28 December to 3 May 2007	Nearly 5 months
2007	8 May to 22 June	Back in the country on 8 May and then away again until 22 June
30 June to 12 September	Over 2 months
October	19 days
November/December	20 days
2008	7 February to 6 March	1 month
March/April	25 days
April	14 days
May	14 days
May/June	10 days
June to July	33 days
July/August	16 days
August to September	29 days
September to October	35 days
November	10 days
November/December	20 days
2009	January to February	1 month
February	Further 4 days
February/March	11 days
March	Further 7 days
March/April	14 days
April/May	19 days
May/June	25 days
June/July	22 days
July	Further 13 days
July/August	19 days
August/September	24 days
September	Further 15 days
September to November	The husband was in Australia for 1 day, and then away again until 15 November 2009, a total of 52 days
November/December	14 days
December	Further 6 days